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ELCAllowedJudicial Review Chamber Summons dated 11th December 2020 (Machakos High Court)· [2022] KEELC 1290 (KLR)

Republic v Cabinet Secretary Ministry of Land and Physical Planning & 2 others; Stanley Tio Kilonzi (Interested party) [2022] KEELC 1290 (KLR)

High Court of Kenya
23 February 2022
1,995 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed that minor paperwork mistakes won't block a judicial review case from going to a full hearing.

What this practically means

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Executive summary

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This is a ruling on a chamber summons dated 11th December 2020 in which the exparte applicant sought leave to file a judicial review application for certiorari to quash the Cabinet Secretary's decision of 26th June 2020 in Appeal Case No. 2/2020 concerning Land Parcel No. 585 Kenze Adjudication Section in Kitui County, together with the earlier decisions of the Adjudication Committee (12th October 2011), the Adjudication Board (9th November 2012) and the Land Adjudication Officer (11th February 2019). The applicant, who has lived on the land since her marriage to the late Musyimi Masila in 1960, alleged that the adjudication process was marred by procedural impropriety, breach of natural justice, favouritism and corruption, and that the decisions contravened the outcome in Kitui Criminal Case No. 74 of 1990. The Attorney General opposed, arguing abuse of process and lack of an arguable case. The Interested Party raised the six-month limitation period, defects in the verifying affidavit, want of consent under Section 30(1) of the Land Adjudication Act, and that the court could not entertain a land ownership claim. Applying the test in Republic v County Council of Kwale Exparte Kondo, the court held that only a glance at the applicant's case is needed at the leave stage. It found the impugned decisions were not in dispute and, relying on IEBC v NASA, held that failure to annex them to the verifying affidavit was not fatal. Leave was granted in terms of prayer 1, with directions for filing the substantive motion.

Key legal issues

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01

Test for grant of leave to apply for judicial review

Holding

The applicant met the threshold of an arguable case fit for further investigation; leave was granted.

Reasoning

The court adopted the purpose of the leave stage from Republic v County Council of Kwale Exparte Kondo: eliminating frivolous applications and ensuring only fit cases proceed. It held the court need not examine the matter in depth, only whether there is a case fit for further investigation. On the material, with allegations of procedural impropriety, breach of natural justice, favouritism and corruption in the adjudication process, and the impugned decisions not in dispute, the threshold was met.

p. 3
02

Sufficiency of the verifying affidavit and annexure of impugned decisions

Holding

Annexing the impugned decisions to the statement rather than the verifying affidavit was not fatal to the application.

Reasoning

The Interested Party argued the verifying affidavit was defective for failing to annex the impugned decisions and for non-compliance with Order 53. The court noted it was not disputed that the impugned decisions were made as stated and were on record though annexed to the statement. Relying on IEBC v NASA, the court held the failure did not render the application incurably incompetent.

p. 3

Legal principles established

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  • Failure to annex impugned decisions to the verifying affidavit, as opposed to the statutory statement, does not render a judicial review application incurably incompetent.
  • Leave stage requires only a glance at the applicant's case to determine if there is an arguable case fit for further investigation at a full inter partes hearing.

Court orders

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  1. 1.Leave granted to the Exparte Applicant to file an application for Judicial Review seeking an order of certiorari (prayer 1 allowed)
  2. 2.Applicant to file and serve the substantive Notice of Motion with copy of the ruling and submissions within 14 days
  3. 3.Respondents and Interested Party to file and serve responses and submissions within 14 days of service; applicant at liberty to file supplementary submissions within 7 days of service
  4. 4.Matter to be mentioned on 24th March for further directions

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 1(1)
  • Civil Procedure RulesOrder 53 Rule 1(2)
  • Civil Procedure RulesOrder 4 Rule 1(2)
  • Civil Procedure RulesOrder 3 Rule 2
  • Land Adjudication ActSection 30(1)

Cases cited (12)

  • Republic vs Kenya Revenue Authority Ex-parte Stanley Mombo Arruti
    [2018] eKLR
  • Mirugi Kariuki vs Attorney General
    [1992] eKLR
  • Republic vs Nairobi City Council & Another
    [2014] eKLR
  • Felix Kiprono Matagei vs The Hon. Attorney General
    Nairobi High Court Petition No. 337 of 2018
  • Commissioner General, Kenya Revenue Authority (through the Republic) vs Silvano Onema Owaki t/a Marenga Filling Station
    Kisumu Civil Appeal No. 45 of 2000
  • Republic vs Busia Chief Magistrate Exparte Therese Hudson & Others
    Busia High Court Judicial Review No. 9 of 2015
  • Cowest Trading GMBH vs Specialized Lighting Systems Ltd
    Nairobi Milimani High Court Civil Case No. 1251 of 2002
  • Republic vs The County Assembly of Nakuru & Others
    Nakuru HC JR No. 19 of 2016
  • Kiroket Ole Punyua vs Umash Ole Mwanik & Others
    Narok High Court Constitutional Petition No. 24 of 2017
  • William Mutuura Kairiba vs Samuel Nkari & Others
    Chuka High Court ELC Case No. 8 of 2018
  • Republic vs County Council of Kwale & Another Exparte Kondo & 57 Others
    Mombasa HCMCA No. 384 of 1996
  • Independent Electoral and Boundaries Commission (IEBC) vs National Super Alliance (NASA) Kenya & 6 Others
    [2017] eKLR
Jurisdiction invoked
Order 53 Rule 1(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, "Republic v Cabinet Secretary Ministry of Land and Physical Planning & 2 others; Stanley Tio Kilonzi (Interested party) [2022] KEELC 1290 (KLR)", Case Analysis (2022). Judicial Review Chamber Summons dated 11th December 2020 (Machakos High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1290/eng@2022-02-23

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