Republic v National Land Commission Ex parte Kihumbu Thairu; Kiambu Dandora Farmers Limited (Interested Party) [2022] KEELC 1567 (KLR)
The bottom line
#The Environment and Land Court dismissed a landowner's bid to quash an alleged NLC allocation, ruling that title disputes belong in a civil suit, not judicial review.
What this practically means
#Executive summary
#Key legal issues
#Whether the sub judice rule barred the application
The preliminary objection failed because the Interested Party did not demonstrate that the issues in the Petition were the same as those before the court or that the Applicant was a party to the Petition
The court set out the four conditions for res sub judice under section 6 of the Civil Procedure Act, drawing on the Supreme Court's formulation in the KNCHR case and Ouko. It found the Interested Party had not established that the matters were directly and substantially the same, nor that the Applicant was a party to Petition No. 47 of 2011.
Whether an order of certiorari could issue to quash the alleged allocation
Certiorari could not issue because the Applicant did not place before the court any decision by the Respondent allocating the suit property, and the exhibited correspondence did not refer to the suit property
Certiorari only quashes a decision already made. The court examined all annexures to the supporting affidavits and found neither the alleged decision nor an allotment letter referencing the suit property. The correspondence referred to Plot No. 11379/3, and the Applicant did not establish a connection between the suit property and that parcel, an issue requiring evidence beyond judicial review.
Whether the dispute was suitable for judicial review
The dispute was essentially one over title to land requiring viva voce evidence and was therefore not amenable to judicial review
Relying on authorities to the effect that judicial review examines legality rather than contested facts, the court held that whether the suit property fell within Plot No. 11379/3 and whether the Interested Party had invaded it were factual disputes between private parties over ownership that belong in a substantive civil suit. Judicial review jurisdiction cannot determine the merits of such a dispute.
Legal principles established
#- A party invoking res sub judice must establish two or more suits over the same subject matter, instituted sequentially, pending before courts of competent jurisdiction, between the same parties or their representatives
- Judicial review is unsuitable for resolving contested issues of fact such as disputes over title to land, which must be determined in a substantive civil suit
Court orders
#- 1.The Applicant's Notice of Motion application dated 3rd January 2018 is dismissed in its entirety
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and sections 8, 9 and 11 of the Fair Administrative Action Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission Ex parte Kihumbu Thairu; Kiambu Dandora Farmers Limited (Interested Party) [2022] KEELC 1567 (KLR)", Case Analysis (2022). Judicial Review ELC Application No. 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1567/eng@2022-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.