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ELCStruck OutJudicial Review proceedings, Eldoret (Notice of Motion dated 9th December 2020)· [2021] KEELC 3803 (KLR)

Rupublic v Sub County Commissioner Baringo North & 2 others Ex parte Francis Kimosop; Zephaniah C. Ronguno (Interested Party) [2021] KEELC 3803 (KLR)

High Court of Kenya
23 March 2021
MOM. A. Odeny
1,523 words in judgment
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The bottom line

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Kenya's High Court confirmed you cannot get injunctions or status quo orders through judicial review — those are private law remedies reserved for ordinary civil suits.

What this practically means

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Executive summary

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The High Court at Eldoret (M. A. Odeny, J) ruled on a Notice of Motion dated 9th December 2020 by the ex parte applicant seeking maintenance of the status quo over plot No. 2763, Kapkoiwo Adjudication Section, restraining the interested parties from utilizing the land pending hearing and determination of the judicial review suit. The 1st to 3rd respondents raised a preliminary objection arguing that the orders sought were incompetent in judicial review proceedings. Relying on Republic v County Government of Kajiado Ex-Parte Leah Wanjiru Mburu and related authority, the respondents contended that judicial review is sui generis, confined to Order 53, and that the Civil Procedure Act, the Rules and the Judicature Act do not apply. The applicant invoked Article 159(2) of the Constitution, urging substantive justice over procedural technicalities. The court resolved the preliminary objection first, holding that judicial review proceedings are a special sui generis procedure under Order 53; that the court reviews process rather than merits; and that injunctive relief is a private law remedy unavailable in judicial review. Article 159, the court held, does not permit ignoring a specific procedure deliberately chosen by a litigant. The preliminary objection was upheld and the Notice of Motion struck out with costs on 23rd March 2021.

Key legal issues

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01

Whether temporary injunctive/status quo orders can issue in judicial review proceedings

Holding

No - judicial review is sui generis and confined to public law remedies under Order 53; injunctive reliefs cannot be granted, and Article 159 does not cure the defect

Reasoning

The court held judicial review under Order 53 is a special, sui generis jurisdiction in which provisions of the Civil Procedure Act and Rules are inapplicable. Judicial review concerns process, not merits, and its remedies are public law remedies; an injunction is a private law remedy unavailable in this context. Article 159 does not allow a party to ignore the specific procedure of judicial review. The preliminary objection was thus upheld and the motion struck out.

p. 3

Legal principles established

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  • Judicial review proceedings are sui generis, exclusively brought under Order 53, and provisions of the Civil Procedure Act and Rules are inapplicable
  • Injunctive relief cannot be granted in judicial review proceedings
  • Article 159 does not justify ignoring a specific procedure deliberately chosen by law for judicial review

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The Notice of Motion dated 9th December 2020 is struck out with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Civil Procedure Actsections 3, 3A, 63(e)
  • Civil Procedure RulesOrder 53 rules 1 and 3; Order 40; Order 1 rule 8
  • Judicature Act
  • Law Reform Act

Cases cited (14)

  • Republic v County Government of Kajiado & 2 others Ex-Parte Leah Wanjiru Mburu
  • Commissioner of Lands v Kunste Hotel Limited
    KLR (E&L) 1 249
  • R vs Communication Commission of Kenya & Another
    (2001) 1 E.A 199
  • Wellamondi vs The Chairman, Electoral Commission of Kenya
    (2002) 1 KLR 286
  • Lucy Bosire v Kehancha Divisional Land Disputes Tribunal & 2 others
    (2013) eKLR
  • Republic vs General Manager, Moi International Airport & another exparte Jared Odhiambo & Another
    (2014) eKLR
  • Republic v Commissioner of Cooperatives Ex Parte Kirinyaga Tea Growers
    [1999] 1 EA 245
  • Republic v Kahindi Nyafula ex parte Kilifi South East Farmers' Cooperative
    High Court, Malindi, Jud. Rev. 3 of 2013 (2014) eKLR
  • Republic v MRK & 3 others
    [2020] eKLR
  • R v Attorney General & 4 Others ex parte Diamond Hashim Lalji and Ahmed Lalji
    (2014)
  • Cortec Mining Kenya Ltd vs Cabinet Secretary Attorney General and 8 Others
    (2015) eKLR
  • Republic v Cabinet Secretary Lands & another; Orwa Group Ranch Representatives (Interested party) Ex-Parte Patrick Pkiach & 6 others
    [2019] eKLR
  • Emfil Limited v. The Registrar of Titles Mombasa & 2 Ors
    (2014) eKLR
  • Republic v County Government of Mombasa Exparte Outdoor Advertising Association of Kenya
    [2018] eKLR
Jurisdiction invoked
Order 53 of the Civil Procedure Rules (judicial review jurisdiction of the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rupublic v Sub County Commissioner Baringo North & 2 others Ex parte Francis Kimosop; Zephaniah C. Ronguno (Interested Party) [2021] KEELC 3803 (KLR)", Case Analysis (2021). Judicial Review proceedings, Eldoret (Notice of Motion dated 9th December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3803/eng@2021-03-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.