Gitau v Chairman, Murang’a Kandara Land Board & another (Judicial Review Miscellaneous Application E001 of 2021) [2022] KEELC 2939 (KLR)
The bottom line
#The Environment and Land Court dismissed an 81-year-old landowner's challenge to a Land Control Board decision because she skipped required appeal steps and court procedures.
What this practically means
#Executive summary
#Key legal issues
#Failure to obtain leave under Order 53 Rule 1
By combining the leave application with the substantive prayers, the Applicant violated Order 53 Rule 1 and the substantive prayers were premature
Order 53 Rule 1 requires that no application for mandamus, prohibition or certiorari be made unless leave has first been granted. The Applicant filed the Chamber Summons and substantive Notice of Motion contemporaneously without prior leave. Article 159(2)(d) does not oust the obligation to comply with procedural imperatives.
Exhaustion of administrative remedies under Section 9(2) of the Fair Administrative Action Act
The Applicant failed to appeal to the Provincial Land Control Appeals Board under Section 11 of the Land Control Act and did not demonstrate exceptional circumstances for exemption under Section 9(4)
Section 9(2) bars review unless internal mechanisms are exhausted. Section 11 of the Land Control Act provides an appeal mechanism. The Applicant neither appealed nor applied for exemption, nor demonstrated exceptional circumstances such as to justify exemption under Section 9(4).
Existence of a decision for certiorari
No decision was attached or ascertained; the word 'deferred' on the face of the application could not confidently be attributed to the Board
Certiorari quashes a decision that must first be shown to exist. The impugned decision was not exhibited, and the court found it difficult to believe the word 'deferred' emanated from the Board. A court cannot quash a speculative decision.
Res judicata
The Application is res judicata, the same orders having been sought and substantively determined in Misc. Application No. 4 of 2021
In Misc. Application No. 4 of 2021 the Applicant had sought similar orders; the court made substantive findings that the decision to be reviewed was not attached and no evidence supported the application. Those were merits findings, so the present application offends Section 7 of the Civil Procedure Act.
Legal principles established
#- An applicant for judicial review must obtain leave under Order 53 Rule 1 before filing the substantive motion; combining the leave application with substantive prayers violates the procedural imperatives
- Administrative remedies must be exhausted before resorting to judicial review unless exemption under Section 9(4) of the Fair Administrative Action Act is granted
- A decision sought to be quashed by certiorari must be ascertained and shown to exist; courts do not issue orders in vain
- A matter whose issues were substantively determined in prior proceedings is res judicata under Section 7 of the Civil Procedure Act
Court orders
#- 1.The instant Judicial Review Application is dismissed entirely with no orders as to costs
- Jurisdiction invoked
- Judicial review under Order 53 Rule 1 of the Civil Procedure Rules and the Fair Administrative Action Act No. 4 of 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitau v Chairman, Murang’a Kandara Land Board & another (Judicial Review Miscellaneous Application E001 of 2021) [2022] KEELC 2939 (KLR)", Case Analysis (2022). Judicial Review Application dated 22nd July 2021 (Misc. Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2939/eng@2022-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.