Republic v Principal Magistrate's Court at Eldoret; Philemon Kemboi Kitum & 2 others (Interested Parties) Ex parte Kenya Forest Service [2021] KEELC 4758 (KLR)

The court accepted that magistrates' courts may hear Article 162(2) disputes under section 9 of the Magistrates' Court Act. However, section 70 of the Forest Conservation and Management Act requires forest disputes to go first to the lowest devolved structure, then the National Environment Tribunal, with appeal to the Environment and Land Court. The interested parties bypassed this framework, so the subordinate court had no jurisdiction in the first instance.

Section 70 provides an elaborate procedure: lowest devolved structure, then the National Environment Tribunal, then appeal to the Environment and Land Court. There was no evidence the interested parties attempted these procedures. The Court of Appeal's exhaustion doctrine in Muthinja Kabiru requires courts to be fora of last resort, and courts have struck out suits where prescribed procedures were ignored.

Citing Sangani Investment Limited, section 8 of the Law Reform Act limits judicial review orders to mandamus, certiorari and prohibition. A declaration requires viva voce evidence and determination on the merits, whereas judicial review concerns only the decision-making process, not the merits.