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ELCDismissedELC JR Application No. 4 of 2019· [2021] KEELC 3975 (KLR)

Republic v Land Adjudication Officer (Kajiado County), Registrar of Group Representatives, John Sitelu Nkipapai, Joseph Lengakuai Olomuko & James Mundei Lenchangwa Ex parte Lemaron Munyepera & Jacob Lemaron Logela (Environment and Land Judicial Review Case 4 of 2019) [2021] KEELC 3975 (KLR)

Environment and Land Court
25 February 2021
COChristine Ochieng
4,599 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kajiado dismissed a bid to overturn Rombo Group Ranch elections, confirming that judicial review cannot resolve factual disputes about election irregularities.

What this practically means

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Executive summary

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The ex parte applicants, former officials of Rombo Group Ranch, sought certiorari to quash the group ranch elections of 6th December 2018 and the results declared by the 1st Respondent as Returning Officer, and mandamus compelling the 1st and 2nd Respondents to freeze the activities of persons elected and to organize fresh elections. They alleged massive irregularities, intimidation and violence, use of an open ballot (Mlolongo/queue) system, votes cast (11,762) far exceeding registered voters (3,382), absence of a register of members, participation of minors, and announcement of results in a thicket. The Respondents countered that ground rules - including queue voting and counting of all members present - were agreed at a meeting on 21st November 2018 attended by all parties, that counting was done in the presence of agents, and that the application was brought 53 days after the elections. The court, applying Article 47 of the Constitution and the classic grounds of illegality, irrationality and procedural impropriety from Council of Civil Service Unions, held that judicial review examines the decision-making process rather than the merits, and that the applicants' allegations of irregularities required an interrogation of facts and evidence unsuitable for that forum. Finding that the Respondents performed their public duties fairly and in accordance with the Fair Administrative Action Act, the court dismissed the application dated 14th October 2019 with costs to the Respondents.

Key legal issues

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01

Whether the Rombo Group Ranch elections of 6th December 2018 were vitiated by illegality, irrationality or procedural impropriety

Holding

Certiorari refused - the applicants failed to meet the threshold for judicial review relief

Reasoning

The court applied the Article 47 standard and the Council of Civil Service Unions tripartite grounds. It found the 1st Respondent acted on the applicants' own invitation, convened a meeting where ground rules for the election were agreed, conducted the elections and announced results. The allegations of irregularities required an interrogation of facts, calling of evidence and examination of merits, which is not the province of judicial review. The applicants only moved 53 days after the elections.

p. 4
02

Whether mandamus should issue to compel the Respondents to freeze the activities of elected officials and organize fresh elections

Holding

Mandamus refused - the Respondents performed their public duty fairly and in accordance with the Fair Administrative Action Act

Reasoning

The court restated the nature of mandamus as a discretionary remedy compelling performance of a public duty. It found the Respondents convened the meeting, set ground rules the applicants consented to, oversaw the elections and announced results. There was no evidence of refusal, neglect or unreasonable delay, or of excess of jurisdiction or breach of natural justice. The applicants in effect sought to interfere with the Respondents' discretion over the manner of conducting the elections.

p. 5
03

Whether allegations of election irregularities, violence and intimidation can be determined in judicial review proceedings

Holding

No - such allegations require calling of evidence and cross-examination and cannot be resolved in this forum

Reasoning

The court accepted the Respondents' submission that allegations of massive irregularities, intimidation and violence require the calling of evidence and cross-examination of witnesses, which is not possible in judicial review. The question of the members' register was held to be an evidentiary issue, and the applicants failed to tender evidence proving that non-members or minors participated in the elections.

p. 5

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • An administrative decision can only be challenged on judicial review for illegality, irrationality and procedural impropriety
  • Judicial review does not permit the court to form its own view of the evidence on the substantial merits
  • Mandamus is a discretionary remedy that issues where a public officer has refused or unreasonably delayed in performing a public duty

Court orders

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  1. 1.The application dated 14th October, 2019 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Land (Group Representatives) Act Cap 287section 17
  • Constitution of Kenya, 2010Article 47
  • Land Registration Actsection 8(1)
  • Community Land Act (Regulations) 2017Paragraph 14(1), 5.6 and 12(j)
  • Elections Actsection 86(1)(b)
  • Land Adjudication Actsection 5(1)(c) and section 23(5)(c)
  • Community Land Act
  • Fair Administrative Action Act

Cases cited (4)

  • Council for Civil Service Unions vs. Minister for Civil Service
    [1985] A.C. 374
  • Republic vs. National Employment Authority & 3 others Exparte Middle East Consultancy Services Limited
    (2018) eKLR
  • Reid vs. Secretary of State for Scotland
    (1999) 2 AC 512
  • Kenya National Examination Council V Republic Ex parte Gathenji Njoroge & 9 Others
    (1997) eKLR
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court under Article 47 of the Constitution and the Fair Administrative Action Act

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, "Republic v Land Adjudication Officer (Kajiado County), Registrar of Group Representatives, John Sitelu Nkipapai, Joseph Lengakuai Olomuko & James Mundei Lenchangwa Ex parte Lemaron Munyepera & Jacob Lemaron Logela (Environment and Land Judicial Review Case 4 of 2019) [2021] KEELC 3975 (KLR)", Case Analysis (2021). ELC JR Application No. 4 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3975/eng@2021-02-25

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