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ELCDismissedMisc Civil Application No. 26 of 2021 (formerly Machakos Misc Application No. 12 of 2020)· [2022] KEELC 939 (KLR)

Joseph Mulwa Ndena v Minister of Lands (through the District Commissioner Mwingi East sub-county Kitui County Appeal No.549 of 2019) & 2 others; Mwendwa Isika (Interested Party) [2022] KEELC 939 (KLR)

Environment and Land Court
8 March 2022
LKL. G. Kimani
2,828 words in judgment
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The bottom line

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The Environment and Land Court in Kitui dismissed a landowner's judicial review case because he never filed the official decision he wanted quashed, as Kenyan procedure strictly requires.

What this practically means

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Executive summary

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The Ex parte Applicant, Joseph Mulwa Ndena, sought judicial review orders of certiorari and prohibition under Order 53 Rules 3(1) and Sections 8 and 9 of the Law Reform Act, to quash the decision of the Deputy County Commissioner Mwingi East (exercising delegated Ministerial powers) of 20th November 2019 dismissing his Appeal No. 549 of 2015 under the Land Adjudication Act, which upheld the award of the disputed plot to the Interested Party, Mwendwa Isika. The Applicant argued the appeal decision ignored material evidence, including six family burials on the land, and violated natural justice and Article 40. The Respondents opposed, contending the application offended Order 53 Rule 7 for failure to lodge the impugned decision, was an appeal disguised as judicial review, and was res judicata and an abuse of process. The Interested Party filed no valid documents; a replying affidavit located on the court file related to a different suit (formerly Machakos Misc Application No. 13 of 2020) and was disregarded. The court, Kimani J, framed a single issue: whether the application met the threshold for judicial review orders. It held that the Applicant failed to produce the impugned decision or account for his failure to do so, contrary to the mandatory provisions of Order 53 Rule 7(1), relying on the Ruiru District Land Disputes Tribunal, Waweru, and KIPPRA authorities on the rationale that a court cannot quash a decision not ascertained to exist. The Notice of Motion dated 22nd May 2020 was dismissed with costs.

Key legal issues

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01

Compliance with Order 53 Rule 7 in certiorari applications

Holding

The failure to lodge the impugned decision verified by affidavit, or account for that failure, rendered the application incompetent

Reasoning

The court found the applicant never produced the decision he sought to quash and gave no satisfactory explanation. Order 53 Rule 7(1) is mandatory. The rationale is to allow the court to ascertain the existence, nature and contents of the decision so as to avoid acting in vain or issuing contradictory or embarrassing orders. Following the authorities, the application could not stand.

p. 4

Legal principles established

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  • Order 53 Rule 7(1) is mandatory; failure to lodge a copy of the decision sought to be quashed renders a judicial review application incompetent

Court orders

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  1. 1.The Notice of Motion dated 22nd May 2020 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3(1)
  • Civil Procedure RulesOrder 53 Rule 7(1) and (2)
  • Law Reform ActSections 8 and 9
  • Land Adjudication ActCap 284, Section 29
  • Constitution of KenyaArticle 40

Cases cited (14)

  • Republic vs National Land Commission & Another Ex Parte Farmers Choice Limited
    (2010) eKLR, ELC Judicial Review No.6 of 2019
  • National Bank of Kenya Limited vs. Ndungu Njau
    (1997) eKLR
  • Republic v Attorney General & 4 others Ex parte Diamond Hashim Lalji and Ahmed Hasham
  • Municipal Council of Mombasa vs Republic; Umoja Consultants
  • Speaker of National Assembly vs Karume
  • Republic v Commissioner of Domestic Taxes; Panafina Airflo Limited (Ex Parte)
    (2019) eKLR
  • George Muriithi Ndirangu v Chairman Business Premises Rent Tribunal & another
    [2016] eKLR
  • East African Community vs Railways African Union (Kenya) and others (No.2)
    Civil Appeal No.41 of 1974 (1974) EA 425
  • Republic v Kenya Power & Lighting Company Ltd & another
    [2013] eKLR
  • Republic vs Public Procurement Administrative Review Board & 2 others Ex parte Rongo University
    (2018) eKLR
  • Martin Nyaga Wambora v Speaker of the Senate
    (2014) eKLR
  • Republic Vs Ruiru District Land Disputes Tribunal & Another ExParte Lucia Waithira Muiruri & Another
    [2014] eKLR
  • Waweru Vs District Veterinary Office, Maragua & Another
    [2006] 1 KLR (E & L)
  • Republic Vs Mwangi S. Kimenyi Ex-Parte Kenya Institute for Public Policy and Research Analysis (KIPPRA)
    [2013] eKLR
Jurisdiction invoked
Order 53 Rule 3(1) of the Civil Procedure Rules and Sections 8 & 9 of the Law Reform Act (Cap 26); in the matter of the Land Adjudication Act Cap 284

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, "Joseph Mulwa Ndena v Minister of Lands (through the District Commissioner Mwingi East sub-county Kitui County Appeal No.549 of 2019) & 2 others; Mwendwa Isika (Interested Party) [2022] KEELC 939 (KLR)", Case Analysis (2022). Misc Civil Application No. 26 of 2021 (formerly Machakos Misc Application No. 12 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/939/eng@2022-03-08

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