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ELCDismissedJudicial Review Application dated 14th April 2021 (application dated 15th November 2021)· [2022] KEELC 322 (KLR)

Laban Nduva Masai v Land Control Board Muka Sub County & another; Deputy County Commissioner Mukaa Sub Count (Interested Party); Isaac Maweu Muia(as legal representative of Mary Vose Muia) (Applicant) [2022] KEELC 322 (KLR)

Environment and Land Court
27 April 2022
TMT. Murigi
2,749 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Hon. T. Murigi, J) determined a Notice of Motion dated 15th November 2021 by Isaac Maweu Muia seeking review and/or setting aside of an order made on 7th April 2021 in judicial review proceedings, or alternatively a stay of proceedings. The Applicant alleged the order was used fraudulently to encroach on land belonging to the Estate of the late John Muia Kali. The ex parte Applicant opposed, arguing the judicial review had been compromised on 19th July 2021 after Land Control Board consent issued, that the Applicant was a stranger who never sought leave to be enjoined, and that the firm F N Mulwa had filed no Notice of Appointment of Advocate. The Respondents filed grounds of opposition; the 3rd Interested Party supported the application. The court framed one issue: whether the Applicant met the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Holding that although Order 45 Rule 1 allows any aggrieved person to apply, the applicant must be properly on record and have sought leave to be enjoined, and that F N Mulwa's failure to file a Notice of Appointment deprived it of authority to act, the court found no substantive order existed to review since the compromise was analogous to a final judgment. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether a non-party may apply for review under Order 45 Rule 1 of the Civil Procedure Rules

Holding

Although Order 45 Rule 1 permits any person considering himself aggrieved to apply, such application must be made by a person properly on record; the Applicant neither sought leave to be enjoined nor filed a Notice of Appointment through his advocate

Reasoning

The court read Order 45 as having two parts: sub-rule (1) allows review by any person considering himself aggrieved, sub-rule (2) by a party not appealing. However, the person must be properly on record. The Applicant never sought leave to be enjoined, and his firm F N Mulwa filed no Notice of Appointment of Advocate as required by Order 9 Rules 1 and 7, so the firm lacked legal basis to file the application.

p. 4
02

Whether there was any order capable of review or proceedings capable of being stayed

Holding

The judicial review proceedings had been marked compromised on 19th July 2021, analogous to a final judgment, and the court had issued no substantive order capable of review

Reasoning

On 19th July 2021 counsel for the ex parte Applicant informed the court that the Land Control Board had granted consent and requested the matter be marked compromised with no orders as to costs. That compromise ended all litigation, leaving no decree or order against which review or stay under Order 45 Rule 1 could be sought.

p. 4

Legal principles established

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  • An application for review under Order 45 Rule 1 must be made by a person properly on record through an advocate with a filed Notice of Appointment of Advocate
  • A compromise marking proceedings as concluded is analogous to a final judgment, leaving no live matter to review or stay

Court orders

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  1. 1.The application dated 15th November 2021 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 80
  • Civil Procedure RulesOrder 9 Rules 1 and 7; Order 45 Rule 1; Order 51 Rule 1

Cases cited (6)

  • Abdulkarim Saleh Muhsin v Nedim Mohammed Ibrahim & 3 Others
    (2021) eKLR
  • Techno Service Limited v Nokia
    (2020) eKLR
  • Nasibwa Wakenya Moses v University of Nairobi & Another
    (2015) eKLR
  • Patriotic Guards ltd v James Kipchirchir Sambu
    (2018) eKLR
  • Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited
    (2014) eKLR
  • HCCC No. 1727 of 1990 (Justice Pall judgment of 25th July 1995)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Orders 45 Rule 1 and 51 Rule 1 of the Civil Procedure Rules

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, "Laban Nduva Masai v Land Control Board Muka Sub County & another; Deputy County Commissioner Mukaa Sub Count (Interested Party); Isaac Maweu Muia(as legal representative of Mary Vose Muia) (Applicant) [2022] KEELC 322 (KLR)", Case Analysis (2022). Judicial Review Application dated 14th April 2021 (application dated 15th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/322/eng@2022-04-27

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