Republic v Deputy County Commissioner, Narok West & 2 others; Karani (Exparte); Mosiro (Interested Party) (Judicial Review Application E002 of 2021) [2022] KEELC 3909 (KLR)
The bottom line
#The Environment and Land Court dismissed a challenge to a minister's land appeal ruling, confirming that if you don't object to new grounds during a hearing, you can't later claim unfairness.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Order 53 of the Civil Procedure Rules (leave and timeliness)
The preliminary objection failed because leave had been granted on March 19, 2021 and the chamber summons for leave was filed slightly over a month after the impugned ruling
The court noted that the ex-parte applicant sought leave by chamber summons dated March 18, 2021 and leave was granted on March 19, 2021, a month after the ruling of February 3, 2021. Accordingly there was no breach of Order 53 Rules 1 and 2 or section 9(3) of the Law Reform Act, and the preliminary objection dated March 22, 2022 was dismissed.
Whether the minister's decision introducing the minor DM as a new party to the appeal was ultra vires, unreasonable, abusive or procedurally improper
No: the applicant did not object to the new grounds or party, was heard with his witnesses, and the minister therefore did not breach the Fair Administrative Action Act or the Constitution
The court confined itself to process, not merits. It observed that the minister considered the grounds of appeal dated March 4, 2019, and that the ex-parte applicant did not object to the introduction of new grounds. The applicant was given a chance to defend his case and his witnesses were heard. The court would possibly have found differently had the applicant opposed the grounds of appeal.
Legal principles established
#- Judicial review is concerned with the process of decision-making, not the merits of the decision
- A court on judicial review is not entitled to act as a court of appeal over the decision-maker
- Leave obtained before filing a judicial review motion satisfies Order 53 Rule 1, and leave sought within six months of the decision satisfies Order 53 Rule 2 and section 9(3) of the Law Reform Act
Court orders
#- 1.The 3rd respondent's preliminary objection dated March 22, 2022 is dismissed
- 2.The notice of motion dated April 7, 2021 is dismissed
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Judicial review under Section 3A of the Civil Procedure Act, Sections 8 and 9 of the Law Reform Act, Order 51 and Order 53 Rules 3 and 4 of the Civil Procedure Rules, Section 13(7) of the Environment and Land Court Act and Article 23(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Deputy County Commissioner, Narok West & 2 others; Karani (Exparte); Mosiro (Interested Party) (Judicial Review Application E002 of 2021) [2022] KEELC 3909 (KLR)", Case Analysis (2022). Judicial Review E002 of 2021 (consolidated with JR E003 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3909/eng@2022-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.