Republic v County Land Registrar, Siaya County & 2 others; Obonyo & another (Exparte Applicants)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the motion was res judicata by virtue of Kisumu ELC Case Number 348 of 2014
The first ground of the preliminary objection failed because not all the conjunctive ingredients of res judicata were met - the parties and reliefs differed
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.
Whether the court had jurisdiction over the judicial review motion
The court found it bereft of jurisdiction; the applicants' remedy was an appeal against the land registrar's determination, not judicial review
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.
Whether the motion was an abuse of court process
Yes - the applicants deliberately withheld the land registrar's report and sought to relitigate a determined boundary dispute through the backdoor
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.
Legal principles established
#- 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
#- 1.Upheld the 2nd, 4th and 5th grounds of the preliminary objection dated March 25, 2022
- 2.Dismissed the ex parte applicants' motion dated 9/02/2022
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.