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ELCDismissedJudicial Review Application - Notice of Motion dated 20th November 2019· [2022] KEELC 3029 (KLR)

Registered Trustees Redeemed Gospel Church v National Land Commission & another; Umoja Residents Association sued through Its officials P.S Kinyanjui (Chairman), Arkipo Onyango (Secretary) & another (Interested Parties) (Judicial Review Miscellaneous Application 54 of 2019) [2022] KEELC 3029 (KLR)

Environment and Land Court
16 June 2022
5,667 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a Nairobi landowner's judicial review challenge because it was filed incorrectly and her title had already been revoked by another court.

What this practically means

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Executive summary

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By a Notice of Motion dated 20th November 2019, the ex-parte applicant sought judicial review orders of prohibition and certiorari to quash a decision of 12th February 2016, communicated by letter of 14th March 2016, revoking her title to L.R. Nairobi/Block 107/384, Umoja 2, on the ground that the decision was made without notice to her, in breach of natural justice, without jurisdiction, and in contempt of a pending suit (Nairobi ELC No. 432 of 2012). The 1st Respondent filed grounds of opposition; the 2nd Respondent's preliminary objection was dismissed on 23rd March 2021; the 1st Interested Party, asserting the land was reserved for a community social centre, filed a replying affidavit disclosing that ELC No. 432 of 2012 had been dismissed on 18th May 2020, the applicant's title cancelled, and the property registered in favour of the 2nd Interested Party to hold in trust for the 1st Interested Party. The court framed three issues. First, the application was fatally incompetent: the substantive motion was brought in the name of the subject instead of the Republic, the Statement of Facts was never verified by a verifying affidavit, and the reliefs in the Motion were at variance with the Statement of Facts. Secondly, the applicant's title having been revoked by a competent court with no appeal, she lacked locus standi and no prohibition could issue. Thirdly, her continuation of the proceedings while concealing the ELC judgment amounted to abuse of court process. The Notice of Motion was dismissed with costs to the Respondents and Interested Parties.

Key legal issues

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01

Competence of the judicial review application

Holding

The Notice of Motion was fatally incompetent: it was filed in the name of the subject rather than the Republic, the Statement of Facts was never verified by a verifying affidavit, and the reliefs in the Motion were at variance with the Statement of Facts.

Reasoning

Judicial review proceedings are sui generis and require strict compliance with their special procedure. The leave was granted in favour of the subject, but the substantive motion should have been brought in the name of the Republic. The affidavit filed supported a chamber summons, not the Statement of Facts, so the Motion lacked factual foundation and was stillborne.

p. 8
02

Whether the Applicant had any protectable right in the suit property

Holding

The Applicant's title had been revoked by judgment in ELC No. 432 of 2012 (18th May 2020) and no appeal was filed; the Applicant therefore had no locus standi and prohibition would issue in futility.

Reasoning

The Applicant had instituted ELC No. 432 of 2012 claiming ownership; that suit was dismissed and her title ordered cancelled, with the property registered in the name of the 2nd Interested Party to hold in trust for the 1st Interested Party. With no appeal, no registered title or legitimate interest remained for the court to protect by way of judicial review.

p. 10
03

Abuse of court process

Holding

Continuing the judicial review proceedings while concealing the judgment in ELC No. 432 of 2012 constituted a pure and unbridled abuse of the due process of the court.

Reasoning

The Applicant and counsel were privy to the judgment of 18th May 2020 yet withheld that critical information from this court, hoping concealment would secure a favourable decision. The court adopted the Muchanga Investments formulation of abuse of judicial process and held the conduct warranted sanction and reprimand.

p. 12

Legal principles established

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  • Prerogative orders of judicial review (certiorari, mandamus, prohibition) must issue in the name of the Republic, and the substantive Notice of Motion must be intituled in the name of the Republic with the affected person as ex-parte applicant.
  • Strict compliance with the rules governing judicial review proceedings is mandatory; non-compliance goes to the root of the proceedings and invalidates the suit rather than being a mere procedural technicality.
  • The Statement of Facts must be verified by a verifying affidavit and must contain the reliefs sought; a Notice of Motion cannot seek reliefs at variance with the Statement of Facts.
  • Judicial review orders are discretionary and will not issue in vain or where they serve no useful purpose; a party whose title has been lawfully revoked has no locus standi to seek protective orders.
  • Concealment of material information from the court, including the outcome of prior proceedings, constitutes abuse of the due process of the court.

Court orders

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  1. 1.The substantive Notice of Motion Application dated 20th November 2019 be and is hereby dismissed with costs to the Respondents and Interested Parties.

Authorities

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Legislation

  • Law Reform ActSection 9(2)
  • Civil Procedure Rules, 2010Order 53 Rule 2
  • Civil Procedure Rules, 2010Order 53 Rule 1(1 & 2)

Cases cited (8)

  • Republic v City Council of Nairobi & Another Ex-parte Shital Bandari
    (2015) eKLR
  • Farmers Bus Service and others v The Transport Licensing Appeal Tribunal
    (1959) E.A. 779
  • Mohamed Ahmed vs. R
    [1957] EA 523
  • Jotham Mulati Welamondi vs. The Electoral Commission of Kenya
    Bungoma H.C. Misc. Appl. No. 81 of 2002 [2002] 1 KLR 486
  • Commissioner General, Kenya Revenue Authority through Republic v Silvano Onema Owaki t/a Marenga Filling Station
    [2001] eKLR
  • R. v. Wandsworth JJ., ex p. Read
    [1942] 1 K. B. 281
  • Joccinta Wanjiru Raphael vs Wiliam Nangulu, Divisional Criminal Investigation Officer Makadara and 2 others
    (2014) eKLR
  • Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others
    [2009] eKLR
Jurisdiction invoked
Judicial review jurisdiction under the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules, 2010

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, "Registered Trustees Redeemed Gospel Church v National Land Commission & another; Umoja Residents Association sued through Its officials P.S Kinyanjui (Chairman), Arkipo Onyango (Secretary) & another (Interested Parties) (Judicial Review Miscellaneous Application 54 of 2019) [2022] KEELC 3029 (KLR)", Case Analysis (2022). Judicial Review Application - Notice of Motion dated 20th November 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3029/eng@2022-06-16

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