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ELCStruck OutEnvironment and Land Judicial Review Case E005 of 2022· [2022] KEELC 13410 (KLR)

Republic v Cabinet Secretary Ministry of Land and Physical Planning & 3 others; Catholic Church Mission & another (Interested Parties); Gitonga & another (Exparte)

Environment and Land Court
12 October 2022
CYC K Yano
2,707 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land judicial review case because the applicants attached evidence for the wrong appeal, showing document accuracy is critical.

What this practically means

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Executive summary

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The ex parte applicants, Fredrick Gitonga and M'ngereni Mathaiya, sought judicial review orders of certiorari and prohibition to quash and restrain implementation of a decision of the Cabinet Secretary (minister) in minister's appeal case No 125 of 2018 dated February 24, 2022 concerning land parcels Nos 795 and 796 Kamwimbi 'A' adjudication section. Their core complaint was procedural: the appeal was heard by an assistant county commissioner rather than the deputy county commissioner to whom the minister had delegated powers under gazette notice 6854, and the decision was allegedly malicious and biased. The respondents and interested parties opposed, contending the hearing was lawful, that the applicants were challenging the merits of the decision, and that the application was defective because the annexed proceedings related to appeal No 298 of 2017, not No 125 of 2018. The interested parties also challenged the legal capacity of the Catholic Church Mission and Kabururu Primary School. The court found that the applicants' evidence did not support their pleadings: the annexed proceedings were for a different appeal than the decision sought to be quashed, and the applicants never amended their pleadings or filed a supplementary affidavit to cure the anomaly. Applying the settled principle that parties are bound by their pleadings, the court held the notice of motion defective, incompetent and unmeritorious and struck it out. Noting the failure to exhibit the correct decision was an honest mistake, the court declined to award costs and ordered each party to bear their own costs.

Key legal issues

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01

Whether judicial review orders could issue where the evidence annexed does not correspond to the decision challenged

Holding

No - the application was defective and incompetent because the applicants annexed proceedings in appeal No 298 of 2017 while seeking to quash the decision in appeal No 125 of 2018, and never rectified the anomaly

Reasoning

The court perused the annextures and found no proceedings in respect of appeal No 125 of 2018. Relying on the settled principle that parties are bound by their pleadings, the court held that evidence at variance with the pleadings goes to no issue. Even after the interested parties raised the anomaly, the applicants did not amend the pleadings or file a supplementary affidavit. Granting orders on unpleaded matters would amount to determination without hearing and denial of justice.

Legal principles established

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  • Parties are bound by their pleadings and evidence adduced must not deviate from them; a court cannot determine matters not pleaded

Court orders

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  1. 1.The notice of motion dated April 14, 2022 is struck out as defective, incompetent and unmeritorious
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Land Adjudication Actsection 29(1)
  • Land Adjudication Actsection 5(2)(c)

Cases cited (14)

  • In the matter of Interim Independent Electoral and Boundaries Commission
    [2011] eKLR
  • Owners of motor vessel 'Lillians' v Caltex Oil (Kenya) Limited
    [1998] eKLR
  • M'bita Ntiro v Mbae Mwirichia & another
    [2018] eKLR
  • Keroche Industries Limited v Kenya Revenue Authority & 5 others
    [2007] 2 KLR 240
  • Lepore Ole Maito v Letwat Kortom & 2 others
    [2016] eKLR
  • Patole v Kabale District Local Government Council and others
    [2008] 2 EA 300
  • Republic v Attorney General & another ex parte Munyokwang Kiyer & 3 others
    [2014] eKLR
  • Peter Ngugi Geoffrey & 3 others v Mithini SDA Church
    [2019] eKLR
  • Matwangwa Kilonzo v District Commissioner Kitui & another
    [2021] eKLR
  • Republic v The Minister for Lands & another ex-parte Bonface Njeru Ngari & another
    [2013] eKLR
  • David Sironga Ole Tukai v Francis Arap Muge & 2 others
    [2014] eKLR

    Parties are bound by their pleadings; a party cannot raise a different case without amendment

  • Independent Electoral and Boundaries Commission & Anor v Stephen Mutinda Mule & 3 others
    [2014] eKLR

    Evidence at variance with pleadings goes to no issue and must be disregarded

  • Adetoun Oladji [NIG] v Nigeria Breweries PLC SC 91/2002
    SC 91/2002

    Parties not allowed to depart from pleadings; enables parties to prepare evidence on joined issues

  • Raila Amolo Odinga & another v IEBC & 2 others
    [2017] eKLR

    No party should be permitted to travel beyond its pleadings; issues arise only on pleaded material propositions

Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court following leave granted on March 24, 2022 (order of certiorari and prohibition under the Land Adjudication Act scheme)

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 Cabinet Secretary Ministry of Land and Physical Planning & 3 others; Catholic Church Mission & another (Interested Parties); Gitonga & another (Exparte)", Case Analysis (2022). Environment and Land Judicial Review Case E005 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13410/eng@2022-10-12

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