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ELCDismissedJudicial Review application commenced by Chamber Summons dated 30th September 2020 (filed 1st October 2020)· [2022] KEELC 1052 (KLR)

Republic v Agriculture and Food Authority Ex Parte Elijah Kimely Keshio & 2 others; National Land Commission & 2 others (Interested Parties) [2022] KEELC 1052 (KLR)

High Court of Kenya at Kisumu (Judicial Review)
24 February 2022
5,163 words in judgment
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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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The ex-parte applicants, trustees of Nyando Valley Association, sought judicial review orders of certiorari and prohibition quashing and restraining implementation of the Agriculture and Food Authority's decision of 15th July 2020 (Reference AFA/SCM/11/326) advertising an International Expression of Interest to lease five state-owned sugar factories, including Chemelil Sugar Company sitting on L.R. No. 11840, to private investors for 25 years. They argued that the land had been allocated to them by the National Land Commission via Gazette Notice No. 1995 of 2019, that the property was subject of a pending intended appeal from Kisumu Petition No. 4 of 2019, and that the advertisement violated lis pendens and their legitimate expectation. The respondent justified the lease as implementation of a Cabinet-adopted sugar-sector privatization policy developed through a task force with public participation, driven by COMESA treaty obligations, and argued the applicants were litigating in multiplicity and indolent in prosecuting their appeal. The court held that judicial review addresses process, not merits; the applicants had not challenged the process of the advertisement but were merely apprehensive about future leasing. The dispute involved the same parties and subject matter as Petition 4 of 2019 pending at the Court of Appeal, and the applicants' delay and multiple suits amounted to abuse of process. The application was dismissed with costs.

Key legal issues

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01

Whether the Respondent's decision to advertise the suit property for lease was amenable to judicial review and tainted with illegality, irrationality or procedural impropriety

Holding

No; the applicants challenged the substance of the commercial leasing policy, not the decision-making process, and failed to show illegality, irrationality or procedural impropriety.

Reasoning

The court noted judicial review examines only the process, not the merits. The Respondent's advertisement was part of a Cabinet-adopted policy to lease five state sugar factories after public participation by the Task Force. The applicants did not challenge the process of the advertisement but were merely apprehensive about a future lease affecting pending appeals. Such contested factual and propriety issues fall outside judicial review.

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02

Whether the application was an abuse of process given existing proceedings over the same subject matter and the applicants' indolence in the appeal

Holding

Yes; the matter involves the same parties and subject matter as Petition 4 of 2019 pending on appeal, and the applicants' delay and multiple suits amount to abuse of process.

Reasoning

The court confirmed the Petition 4 of 2019 judgment involved the same parties and subject matter and was pending before the Court of Appeal. The applicants had failed to file a Notice of Appeal in time, needed leave, and even after being granted 21 days to file the substantive appeal failed to comply. Instituting multiple proceedings instead of prosecuting the appeal was delay tactics constituting abuse of the court process.

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Legal principles established

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  • Judicial review addresses the lawfulness of the decision-making process, not the merits of the decision
  • Litigants cannot evade res judicata by reframing the same dispute as new causes of action or multiple proceedings

Court orders

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  1. 1.The application for judicial review (certiorari and prohibition) is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Constitution of Kenya 2010Article 2(5) and (6); Article 186; Fourth Schedule
  • Agriculture and Food Authority ActSection 3 (No. 13 of 2013)
  • Crops Act(No. 16 of 2013)
  • Land Registration ActSection 107(1) (No. 3 of 2013)
  • Indian Transfer of Property Act (ITPA)Section 52 (repealed)

Cases cited (14)

  • Republic vs Kenya Airports Authority Ex-parte Seo & Sons Limited
    (2018) eKLR
  • Republic vs Commissioner for Higher Education ex parte Peter Shoita Sitanda
    (2013) eKLR
  • Patsoli vs Kabale District Local Government Council & Others
    (2008) 2 EA 300
  • Naftali Ruth Kinyua vs Patrick Thuita Gachure & Another
    (2015) eKLR
  • Communications Commission of Kenya & 5 Others vs Royal Media Services & 5 Others
    (2014)
  • Republic vs District Land Registrar Kisii County & 2 Others Ex-Parte Richard Nyabando, Elijah Nyagami Gai (Interested Party)
    (2021) eKLR
  • Republic vs National Employment Authority & 3 Others Ex-Parte Middle East Consultancy Services Limited
    (2018) eKLR
  • Wayua Waita vs James Ngui Ndambuki
    (2021) eKLR
  • Republic vs Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji
    [2014] eKLR
  • Joshua Ngartu v Jane Mpinda & 3 Others
    (2019) eKLR
  • Attorney General & Another v ET
    (2012) eKLR
  • Omondi v National Bank & Others
    (2001) EA 177
  • Njanju v Wambugu & Another
    HCCC No. 2430 of 1991 (unreported)
  • County Government of Kisumu vs National Land Commission; Elijah Kimely Keshio & 2 Others (Interested Parties)
    (2020) eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court (Fair Administrative Action/Order 53), invoked by Chamber Summons for leave to apply for certiorari and prohibition

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 Agriculture and Food Authority Ex Parte Elijah Kimely Keshio & 2 others; National Land Commission & 2 others (Interested Parties) [2022] KEELC 1052 (KLR)", Case Analysis (2022). Judicial Review application commenced by Chamber Summons dated 30th September 2020 (filed 1st October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1052/eng@2022-02-24

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