Silas & another v Minister for Lands and Settlement & another; Mbogo (Interested Party) (Environment and Land Judicial Review Appeal 1 of 2021) [2022] KEELC 2465 (KLR)
The bottom line
#The Environment and Land Court in Embu dismissed a land dispute judicial review application for being filed too late and repeating an earlier decided case.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The intended judicial review application is res judicata as the subject matter and reliefs were the same as those determined in JR No. 40 of 2011, Embu, by a competent High Court
The court found the earlier High Court ruling of 7/11/2012 in JR No. 40 of 2011, Embu involved the same subject matter and reliefs, with the 2nd respondent also an applicant then. The five elements of res judicata set out in IEBC v Maina Kiai were satisfied. Adding a few parties is a cosmetic change that cannot evade the doctrine. The applicants were seeking a second bite at the cherry.
Limitation under Order 53 rule 2
The application was made long after the six-month period prescribed by Order 53 rule 2 and cannot be entertained
Order 53 rule 2 requires a judicial review application to be made within six months of the decision challenged. The applicants were making the application long after that period. The court held that allowing judicial review proceedings that late would be acting contrary to law, as time is of essence in judicial review matters.
Validity of the preliminary objection
Only points 1 and 2 of the objection (Order 53 rule 2 and Section 7 of the Civil Procedure Act) are true points of law; points 3, 4 and 5 are not
A true preliminary objection raises a pure point of law on the assumption that the other side's facts are correct. Points 3, 4 and 5 (no cause of action, reliefs incapable of being granted, conjecture/malice) would require prosecution for proof and therefore do not qualify as points of law. The court confined itself to points 1 and 2.
Legal principles established
#- A party cannot evade the doctrine of res judicata by making cosmetic changes such as adding parties or causes of action to a subsequent suit
- Judicial review applications under Order 53 rule 2 must be brought within six months of the decision challenged; time is of the essence
Court orders
#- 1.The preliminary objection dated 21/4/2021 is upheld
- 2.The chamber summons dated 28/12/2020 and filed 20/1/2021 is dismissed
- 3.Costs to the respondents and the interested party
- Jurisdiction invoked
- Original jurisdiction to grant leave for judicial review orders of Certiorari and Prohibition under Order 53 of the Civil Procedure Rules (Environment and Land Court Act also invoked in submissions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Silas & another v Minister for Lands and Settlement & another; Mbogo (Interested Party) (Environment and Land Judicial Review Appeal 1 of 2021) [2022] KEELC 2465 (KLR)", Case Analysis (2022). Not stated in the judgment (Chamber Summons dated 28/12/2020, filed 20/1/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2465/eng@2022-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.