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ELCDismissedJudicial Review Chamber Summons dated 19th January 2022· [2022] KEELC 3192 (KLR)

Republic v Senior Resident Magistrate Kiambu Law Courts & 2 others; Kamau (Exparte); Gachoka & 2 others (Interested Parties) (Judicial Review 1 of 2022) [2022] KEELC 3192 (KLR)

Environment and Land Court of Kenya
2 June 2022
4,107 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court dismissed a landowner's attempt to quash a magistrate's orders, because she skipped appeal and review remedies and missed the six-month deadline.

What this practically means

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Executive summary

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This was an ex-parte chamber summons dated 19th January 2022 under Order 53 rules 1 and 2 of the Civil Procedure Rules seeking leave to apply for judicial review orders of certiorari against two rulings of Hon. Rading in Kiambu magistrate's court proceedings, mandamus against the Land Registrar Kiambu to cancel entries on parcels Ndumberi/Ndumberi 3942-3944 and green cards for subdivisions 4852-4872, and leave to operate as a stay. The applicant, widow of the late Kamau Gachoka, contended that the 3rd respondent fraudulently obtained ex parte orders removing her cautions through misrepresentation and concealment, that the trial court lacked pecuniary jurisdiction over land valued at about Kshs. 30 million, and that the subdivisions flowed from orders later set aside. The respondents opposed, arguing the six-month limitation under section 9(3) of the Law Reform Act, the availability of appeal and review remedies, and that the orders of 3rd July 2020 had been discharged so a nonexistent order cannot be quashed; the 3rd respondent further showed the subdivision titles issued in 2019, before the impugned orders. The court held that leave was mandatory within six months for certiorari against court decisions, distinguished the Sidian Bank authority relied on by the applicant, found no prima facie case, and held that available review and appeal remedies had to be exhausted first. The application was dismissed with costs. Leave was refused on all prayers, including mandamus, since the subdivisions predated the impugned orders.

Key legal issues

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01

Whether a prima facie case was established for leave to apply for judicial review

Holding

The application failed; no prima facie case was established and the proceedings were premature

Reasoning

The court observed the chequered litigation history between the parties, noted that the orders of 3/7/2020 had been discharged on 10/8/2020 and that a nonexistent order cannot be quashed. The lower court case remained pending and the applicant could pursue remedies there. The mandamus prayer also failed because the subdivisions predated the impugned orders.

p. 7
02

Whether the six-month limitation under section 9(3) of the Law Reform Act applies to challenges against court decisions

Holding

Yes; the bar is mandatory for certiorari against judgments, orders, decrees, convictions or proceedings

Reasoning

The court distinguished the Sidian Bank decision, holding that it concerned a Land Registrar's decision, which is not a judgment, order, decree or conviction. The applicant's submission that the six-month bar does not apply to court decisions was found unfounded; the first impugned order was discharged and the second order of 27/9/2021 was never annexed.

p. 7
03

Whether judicial review could proceed without exhaustion of alternative remedies

Holding

No; review and appeal remedies were available and had to be exhausted first

Reasoning

Applying Nuh Abdille Hassan and Speaker v Karume, the court held that although the impugned decision was not an administrative action under the Fair Administrative Action Act, where a written law provides a remedy such as review or appeal, judicial review cannot be entertained unless those remedies are exhausted. The applicant's suit was premature.

p. 8
04

Whether the trial court lacked pecuniary jurisdiction over land valued at approximately Kshs. 30 million

Holding

The court noted the concern but declined to pronounce itself definitively

Reasoning

The court observed that the 3rd respondent's sale agreement indicated a purchase price of Kshs. 24 million, exceeding the Kshs. 20 million pecuniary ceiling for a Chief Magistrate under section 7(1)(a) of the Magistrates' Courts Act. However, it was unclear whether the objection was raised before the magistrate, and the court declined to elaborate further.

p. 5

Legal principles established

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  • Where there are internal mechanisms such as review or appeal, or where a written law provides a remedy, the court is barred from entertaining judicial review unless such remedies are exhausted
  • Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • Certiorari issues to quash a decision already made, particularly where the decision was made without or in excess of jurisdiction or where rules of natural justice were not complied with

Court orders

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  1. 1.The application is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 rules 1, 2 and 7
  • Law Reform ActSection 9(3)
  • Fair Administrative Action ActSections 7, 9(1) and 9(2)
  • Constitution of Kenya, 2010Articles 22(3), 23(3)(f) and 47
  • Magistrates Court Act No 26 of 2015Section 7(1)(a)

Cases cited (15)

  • Pastoli vs Kabale District Local Government Council and others
    [2008] 2 EA 300
  • Republic v Chief Land Registrar & 3 others ex-parte Sidian Bank
    [2016] eKLR
  • Republic vs Chief Magistrate Busia Law Courts & another Ex parte Albert Gerald Lusimba Rague & others
    [2021] eKLR
  • Kenya National Examination Council vs Republic, Exparte Geoffrey Gathenji & 9 others
    Nairobi Civil Appeal No. 266 of 1996
  • J K Patel vs. Spear Motors Ltd
    SCCA No. 4 of 1991 [1993] VI KALR 85
  • Constantine Steamship Line Ltd vs. Imperial Smelting Corp
    [1914] 2 All ER 165 (H.L)
  • Trevor Price vs. Kelsall
    [1975] EA 752
  • Nuh Abdille Hassan v Principal Magistrate’s Court at Milimani & another; Halima Mahmood Ali (Interested Party)
    [2021] eKLR
  • Speaker of the National Assembly v Karume
    [1992] eKLR
  • Council of Civil Service Union v Minister for the Civil Service
    [1985] AC 2
  • Francis Bahikirwe Muntu and others v Kyambogo University
    Miscellaneous application number 643 of 2005 (UR)
  • Re An Application by Bukoba Gymkhana Club
    [1963] EA 478
  • Al-Mehdawi v Secretary of State for the Home Department
    [1990] AC 876
  • R. vs. The Judicial Inquiry Into The Goldernberg Afiair Ex Parte Hon Mwalulu & Others
    HCMA No. 1279 of 2004 [2004] eKLR
  • Republic vs. The Commissioner of Lands Ex Parte Lake Flowers Limited
    Nairobi HCMISC. Application No. 1235 of 1998
Jurisdiction invoked
Order 53 rules 1 and 2 of the Civil Procedure Rules, 2010; section 9(3) of the Law Reform Act; sections 8 and 9 of the Fair Administrative Action Act, 2015

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 Senior Resident Magistrate Kiambu Law Courts & 2 others; Kamau (Exparte); Gachoka & 2 others (Interested Parties) (Judicial Review 1 of 2022) [2022] KEELC 3192 (KLR)", Case Analysis (2022). Judicial Review Chamber Summons dated 19th January 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3192/eng@2022-06-02

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