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ELCAllowedJudicial Review Application (Siaya), Misc. Application to set aside order of 19th July 2016· [2022] KEELC 826 (KLR)

Rebublic v Chairman Land Dispute Tribunal Siaya Leonida Apat Okello (Interested Party) Ex-parte Margaret Aloo Obinge [2022] KEELC 826 (KLR)

Environment and Land Court
24 February 2022
1,397 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court set aside a 2016 dismissal of a land judicial review case because the applicant was never served, allowing the case to finally be heard.

What this practically means

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Executive summary

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Margaret Aloo Obinge (ex-parte applicant) moved the Environment and Land Court at Kisumu to set aside an order dated 19th July 2016 dismissing her judicial review application for want of prosecution. The underlying judicial review application sought certiorari to quash proceedings and decisions of the Siaya Lands Dispute Tribunal Case No. 643/1999 and the Nyanza Provincial Land Appeal Committee Case No. 2006/2000, adopted in Siaya Principal Magistrate's Court Land Case No. 58 of 2000, which ordered transfer of a portion of land parcel South Sakwa/Migwena/615 to the interested party, Leonida Apat Okello. The applicant explained that she ran into financial difficulties, could not instruct her advocate, and that neither she nor her advocate was served with the notice to show cause before dismissal. The interested party opposed, contending the applicant had not come to court with clean hands, that the court had become functus officio after the 2016 dismissal, and that the dispute had been fully litigated before the tribunals and subordinate courts. In written submissions, the applicant raised five issues: service of the notice to show cause; the jurisdiction of the judge who dismissed the suit; functus officio; entitlement to the prayers; and costs. Relying on Telkom Kenya Limited v John Ochanda (2014) eKLR, she argued a dismissal for want of prosecution was not a merits determination. Antony Ombwayo J allowed the application, finding no evidence of service, that the dismissing High Court judge lacked jurisdiction over land ownership disputes, and that the court was not functus officio since the dismissal was not merits-based. The court set aside the 19th July 2016 dismissal, directed the judicial review application to be set for hearing, and ordered costs in the cause.

Key legal issues

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01

Service of the notice to show cause

Holding

There was no evidence the ex-parte applicant was served, justifying review of the dismissal

Reasoning

The applicant's advocate was allegedly never served with the notice to show cause dated 30.6.2016 before dismissal on 19 July 2016. The interested party produced no proof of service. In the absence of service the applicant was condemned unheard, and the court exercised its discretion in her favour to set aside the dismissal so the judicial review application could be heard on its merits.

p. 3
02

Jurisdiction of the judge who dismissed the application

Holding

The dismissal order was made by a High Court judge without jurisdiction over land ownership disputes, and is therefore a nullity

Reasoning

The applicant argued, and the court accepted, that the judicial review application concerned a land dispute, and the judge who dismissed it for want of prosecution was not an Environment and Land Court judge. Lacking jurisdiction over disputes revolving on land ownership, that dismissal could not stand, reinforcing the court's decision to set it aside.

p. 3
03

Whether the court was functus officio

Holding

The court was not functus officio because the dismissal was not a merits-based decision

Reasoning

Relying on the Telkom Kenya case, the applicant argued functus officio bars only merit-based re-engagement after final judgment and decree. Since the suit was dismissed for want of prosecution and no judgment was issued on the issues in the judicial review application, the court held it was not barred from revisiting the dismissal.

p. 3

Legal principles established

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  • A dismissal for want of prosecution is not a merits-based determination, so the court is not functus officio and may review the dismissal
  • Where an applicant was not served with the notice of dismissal, the court will exercise its discretion to grant an order of review

Court orders

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  1. 1.Sets aside the order dated 19th July 2016 dismissing the judicial review application
  2. 2.The judicial review application is to be set for hearing and determination
  3. 3.Costs of the Application be in the cause

Authorities

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Legislation

  • Civil Procedure Actsection 27

Cases cited (1)

  • Telkom Kenya Limited vs John Ochanda
    (2014) eKLR
Jurisdiction invoked
Inherent discretion to review/set aside orders; judicial review jurisdiction over land dispute tribunal decisions (Environment and Land 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, "Rebublic v Chairman Land Dispute Tribunal Siaya Leonida Apat Okello (Interested Party) Ex-parte Margaret Aloo Obinge [2022] KEELC 826 (KLR)", Case Analysis (2022). Judicial Review Application (Siaya), Misc. Application to set aside order of 19th July 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/826/eng@2022-02-28

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