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ELCDismissedELC JR No. E011 of 2020· [2022] KEELC 1183 (KLR)

Republic v P. Muholi Senior Resident Magistrate & another;Lucmi (E.A) Limited (Interested Party) [2022] KEELC 1183 (KLR)

Environment and Land Court
17 February 2022
3,057 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to quash a magistrate's land case, ruling the company should have sought review in the lower court first.

What this practically means

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Executive summary

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Lucmi (E.A) Limited sued China Road & Bridge Corporation (the Ex-parte Applicant) before the Chief Magistrate's Court at Milimani in CMCC No.1999 of 2020 for trespass on land described as 'Embakasi neighbouring Nairobi National Park'. The Ex-parte Applicant, a licensee of the National Land Commission over 265 acres within the JKIA flight path, moved the Environment and Land Court by judicial review seeking certiorari to quash the proceedings and prohibition against further hearings, contending that the magistrate lacked pecuniary jurisdiction because the land was valued at over Kshs.13 billion, and that the magistrates violated natural justice by issuing ex-parte mandatory injunctions and eviction orders without service. The Interested Party opposed, arguing that no decision had been made on the pending jurisdictional objection, that judicial officers enjoy immunity, and that the proper remedies were appeal or review. Relying on Municipal Council of Mombasa v Republic; Umoja Consultants and the Gathenji case on the scope of certiorari and prohibition, the court held that judicial review was inappropriate since the Ex-parte Applicant should have sought review in the lower court, where its preliminary objection on jurisdiction remained pending. The court nonetheless reminded the magistrate of the duty to secure the Ex-parte Applicant's right to a fair hearing under Article 50(1). The notice of motion dated 18th December 2020 was dismissed, with each party bearing its own costs.

Key legal issues

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01

Whether certiorari and prohibition should issue to quash proceedings before a magistrate court allegedly exceeding its pecuniary jurisdiction

Holding

No - the court declined to grant judicial review orders, finding the Ex-parte Applicant should have pursued review in the lower court where its preliminary objection on jurisdiction was pending

Reasoning

The court adopted the Umoja Consultants principle that judicial review is concerned with the decision-making process, not merits, and the Gathenji scope of certiorari and prohibition. Noting that the Ex-parte Applicant had already raised a preliminary objection on pecuniary jurisdiction pending before the trial court, the judge held that review of the orders in the lower court, not judicial review, was the appropriate remedy. The court found no merit in the motion.

p. 4
02

Whether the Ex-parte Applicant was denied the right to be heard

Holding

Despite declining relief, the court affirmed the magistrate's duty to secure the Ex-parte Applicant's fair hearing under Article 50(1) of the Constitution

Reasoning

Although the court found the application unmerited, it observed that the 1st Respondent has a duty to ensure all parties are heard, referencing Article 50(1). This was a cautionary direction rather than a basis for the judicial review orders sought.

p. 5

Legal principles established

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  • Judicial review concerns the decision-making process, not the merits; where an adequate alternative remedy such as review exists in the lower court, judicial review is inappropriate
  • A magistrate court retains a duty to afford all parties an opportunity to be heard, as guaranteed by Article 50(1) of the Constitution

Court orders

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  1. 1.The notice of motion dated 18th December 2020 is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Environment and Land Court ActSection 26(4)
  • Magistrates' Court ActSection 7(1)
  • Judicature ActSection 6
  • Constitution of KenyaArticle 160(5)
  • Constitution of KenyaArticle 50(1)

Cases cited (6)

  • Republic vs E. Mutunga Senior Resident Magistrate, Mombasa & 4 others Ex-parte Dalu Chigamba Munga & Another
    [2017] eKLR
  • Shuhan Limited vs Chief Magistrates Court, Thika & Another
    [2017] eKLR
  • Municipal Council of Mombasa v Republic; Umoja Consultants Ltd
    [2002] eKLR
  • Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji & 9 others
    Nairobi Civil Appeal No.266 of 1996
  • Nelson Kinyua Wambutu v County Government of Nyeri & Another
    [2016] eKLR
  • Republic v Attorney General & Another Ex-Parte Ongata Works Limited
    [2016] eKLR
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court (certiorari and prohibition) in respect of proceedings before the Chief Magistrate's 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, "Republic v P. Muholi Senior Resident Magistrate & another;Lucmi (E.A) Limited (Interested Party) [2022] KEELC 1183 (KLR)", Case Analysis (2022). ELC JR No. E011 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1183/eng@2022-02-17

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