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ELCDismissedJR (Judicial Review) Application - Interested Party's Notice of Motion dated 26th September 2019· [2022] KEELC 1921 (KLR)

Republic v Ridgeway International Limited Ex parte National Land Commission; Milicons Limited (Interested party) [2022] KEELC 1921 (KLR)

Environment and Land Court of Kenya
27 January 2022
2,211 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled you can challenge a public land decision through judicial review even while a private land dispute over the same property is ongoing.

What this practically means

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Executive summary

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Before the Environment and Land Court at Machakos was an application by the Interested Party seeking to strike out the ex-parte Applicant's Notice of Motion dated 15th July, 2019, which sought an order of mandamus against the National Land Commission (the Respondent) concerning the legality and propriety of parcels LR No. 337/4762 and LR No. 337/4763. The Interested Party, through its Chief Finance Officer, argued that the suit was an abuse of court process, sub judice given the pending Machakos ELC 127 of 2017 suit over the same properties, and time barred since the Respondent had made its decision on 23rd May, 2016. It further alleged non-disclosure of material facts in obtaining leave. The ex-parte Applicant, through its director, countered that the ELC suit concerned fraudulent compensation during compulsory acquisition and sought private law remedies, whereas the judicial review sought mandamus for the Respondent's failure to issue a valid determination compliant with the NLC Regulations; it relied on article 47 and the Fair Administrative Action Act. The court, applying the Muchanga Investments tests on abuse of process and the principle that judicial review concerns the decision-making process rather than merits, held that the judicial review proceedings were sui generis, concerned only with legality of a public body's decision, and not identical to the civil suit; they were neither sub judice nor an abuse of process, and were not time barred as they sought mandamus. The Interested Party's application dated 26th September, 2019 was dismissed with costs.

Key legal issues

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01

Whether the judicial review application is an abuse of court process and sub judice given the pending Machakos ELC 127 of 2017 suit

Holding

It is not; the reliefs and causes differ - the civil suit seeks private law remedies while the judicial review seeks mandamus on the legality of the Respondent's decision

Reasoning

Applying the Muchanga Investments parameters on abuse of process, the court noted the ELC suit seeks declaratory orders, permanent injunction, revocation and cancellation of title and compensation, remedies unavailable in judicial review. The judicial review falls within public law and cannot be merged with the private law claim, so the two proceedings are not identical and not sub judice.

p. 3
02

Whether the judicial review claim is time barred

Holding

It is not, because it seeks an order of mandamus

Reasoning

The Interested Party argued the claim was statute-barred since the Respondent's decision was made on 23rd May, 2016. The court held that the judicial review application seeks only an order of mandamus and is therefore not time barred.

p. 3
03

Whether the ex-parte Applicant withheld material facts to obtain leave

Holding

The court did not accept the Interested Party's contention; the application was found unmerited

Reasoning

The Interested Party alleged non-disclosure of Machakos ELC 127 of 2017 in obtaining leave. The ex-parte Applicant explained the ELC suit had other parties and different reliefs, and the court, having found the proceedings distinct, dismissed the striking-out application with costs.

p. 3

Legal principles established

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  • Judicial review proceedings are sui generis and concerned with the legality of decisions of government or public bodies, distinct from private law civil claims, so the two are not sub judice of each other
  • A judicial review application seeking only mandamus is not time barred

Court orders

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  1. 1.The Interested Party's Notice of Motion application dated the 26th September, 2019 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010article 47
  • Constitution of Kenya, 2010article 23(3)(f)
  • National Land Commission (Review of Grants and Dispositions of Public Land) Regulations, 2017regulations 29, 31 and 32
  • Fair Administrative Action Actnull

Cases cited (14)

  • Trust Bank Limited v Amin Company Ltd & Another
    (2000) KLR 164
  • Republic v Registrar of Societies - Kenya & 2 Others Ex-Parte Moses Kirima & 2 others
    [2017] eKLR
  • Nyanza Garage v Attorney General
    Civil Suit No. 450 of 1993
  • Graham Rioba Sagwe & 2 others v Fina Bank Limited & 5 others
    [2017] eKLR
  • Amaefule & others vs the State
    (1998) 4SCNJ 69 at 87
  • Agwusin V Ojichie
  • Republic –v– National Land Commission Ex-parte Krystalline Salt Limited
    [2015]
  • Super Nova Properties Limited v The National Land Commission
    [2019] eKLR
  • Selehaddin Gulen v Inspector General of Police & 5 others
    [2021] eKLR
  • Republic v County Government of Mombasa Ex-parte Outdoor Advertising Association of Kenya
    [2014] eKLR
  • Republic vs. Paul Kihara Kariuki, Attorney General & 2 Others Ex parte Law Society of Kenya
    (2020) eKLR
  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Reid vs. Secretary of State for Scotland
    (1999) 2 AC 512
  • Muchanga Investments Limited vs. Safaris Unlimited (Africa) Ltd & 2 Others
    Civil Appeal No. 25 of 2002 [2009] KLR 229
Jurisdiction invoked
Judicial review jurisdiction under the Fair Administrative Action Act and article 47 of the Constitution; Environment and Land 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 Ridgeway International Limited Ex parte National Land Commission; Milicons Limited (Interested party) [2022] KEELC 1921 (KLR)", Case Analysis (2022). JR (Judicial Review) Application - Interested Party's Notice of Motion dated 26th September 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1921/eng@2022-01-27

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