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ELCDismissedEnvironment and Land Judicial Review Case 9 of 2021· [2022] KEELC 4892 (KLR)

Republic v County Land Registrar, Siaya County & 2 others; Obonyo & another (Exparte Applicants)

Environment and Land Court of Kenya
22 September 2022
2,223 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Siaya dismissed landowners' bid to force officials to resolve a boundary dispute, ruling they should have appealed instead.

What this practically means

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Executive summary

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The ex parte applicants, Fredrick Otieno Obonyo and Mildred Akinyi Otieno, filed a substantive motion dated February 9, 2022 seeking orders of mandamus compelling the County Land Registrar and County Surveyor of Siaya to determine whether land parcel West Alego/Sigoma Uranga/1251 had been encroached upon. The respondents, represented by the Attorney General, raised a five-ground preliminary objection asserting res judicata, lack of jurisdiction, abuse of process, and that the applicants' remedy was an appeal. The court (Koross J) framed two issues: res judicata and jurisdiction. On res judicata, the court found the ingredients not conjunctively satisfied - the parties and reliefs in Kisumu ELC Case Number 348 of 2014 differed - so the first ground failed. On jurisdiction, however, the court held that the prior judgment by Ombwayo J had determined that the land registrar had settled the boundary dispute and that the only route to the ELC was by appeal; the applicants had appealed neither the registrar's determination nor that judgment. Judicial review concerns the decision-making process, not merits, and the court could not sit on appeal over a court of concurrent jurisdiction; it was therefore bereft of jurisdiction and downed its tools. The court further found the applicants' conduct - withholding the registrar's report and relitigating the same boundary dispute while roping in parcel 1252 - deliberate, mischievous and an abuse of court process. The court upheld grounds 2, 4 and 5 of the preliminary objection, dismissed the motion, and awarded costs to the respondents.

Key legal issues

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01

Whether the motion was res judicata by virtue of Kisumu ELC Case Number 348 of 2014

Holding

The first ground of the preliminary objection failed because not all the conjunctive ingredients of res judicata were met - the parties and reliefs differed

Reasoning

The court scrutinised Kisumu ELC Case Number 348 of 2014 and found the parties were not substantially the same, as the respondents were not parties there, and the reliefs differed (trespass versus mandamus). Although the issues in both cases related substantially to the same boundary dispute, the applicants had not met all the ingredients of res judicata, which must be satisfied conjunctively per the Maina Kiai elements.

p. 4
02

Whether the court had jurisdiction over the judicial review motion

Holding

The court found it bereft of jurisdiction; the applicants' remedy was an appeal against the land registrar's determination, not judicial review

Reasoning

The prior judgment in Kisumu ELC Case Number 348 of 2014 (Ombwayo J) had determined that the land registrar had settled the boundary dispute and the only route to the ELC was by appeal. The ex parte applicants appealed neither that determination nor the judgment. Judicial review is not a panacea for all public-body decisions and concerns process, not merits; the court could not sit on appeal over a court of concurrent jurisdiction and therefore downed its tools.

p. 4
03

Whether the motion was an abuse of court process

Holding

Yes - the applicants deliberately withheld the land registrar's report and sought to relitigate a determined boundary dispute through the backdoor

Reasoning

The court observed that the applicants, well knowing the 1st and 2nd respondents had determined the boundary dispute over West Sigoma/Uranga/1253, lodged another boundary dispute roping in parcel 1252, and deliberately failed to proffer the registrar's report of 25/9/2018. This was found deliberate, mischievous and intended to obtain orders through the backdoor, constituting an abuse of process.

p. 5

Legal principles established

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  • A court's jurisdiction flows from the Constitution or legislation, and a court can only exercise jurisdiction as conferred by the Constitution or written law
  • Judicial review concerns the decision-making process, not the merits of the decision
  • The ELC has jurisdiction to hear and determine judicial review cases under section 13(7)(b) of the Environment and Land Court Act

Court orders

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  1. 1.Upheld the 2nd, 4th and 5th grounds of the preliminary objection dated March 25, 2022
  2. 2.Dismissed the ex parte applicants' motion dated 9/02/2022
  3. 3.Awarded costs to the respondents
Jurisdiction invoked
Section 13(7)(b) of the Environment and Land Court Act; order 53 rules 3(1) and (3) of the Civil Procedure Rules

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 County Land Registrar, Siaya County & 2 others; Obonyo & another (Exparte Applicants)", Case Analysis (2022). Environment and Land Judicial Review Case 9 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4892/eng@2022-09-22

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