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ELCStruck OutJudicial Review 13 of 2021· [2022] KEELC 13694 (KLR)

Water Front Holdings Limited v Registrar of Titles Mombasa & another; Kandie (Interested Party)

Environment and Land Court at Mombasa
25 October 2022
3,376 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a judicial review case because the company was really trying to appeal a decision it had already appealed.

What this practically means

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Executive summary

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Water Front Holdings Limited, the ex parte applicant in Judicial Review 13 of 2021, moved the Environment and Land Court at Mombasa by notice of motion dated February 9, 2022 under Order 45 of the Civil Procedure Rules seeking review, setting aside or variation of ex parte orders issued on December 28, 2021, contending they were obtained through concealment of material facts and were otiose because a Certificate of Lease had already issued in its favour on December 8, 2021 pursuant to the judgment of Justice Yano in ELC No. 126 of 2019. The 2nd Respondent, John Lemiso Ole Lekakeny, opposed, arguing the court retained inherent jurisdiction and that the applicant had abused court process by forum shopping. The interested party filed no response and concurred with the 2nd Respondent. Matheka J framed two issues: the court's jurisdiction and whether the application fell within judicial review. The court accepted that under Article 162(2)(b) and Section 13 of the ELC Act it may hear judicial review applications on land use, occupation and title, but held that this application was in substance an appeal against the merits of Justice Yano's decision, with an appeal already pending before the Court of Appeal. Judicial review is concerned with process, not merits, and is a remedy of last resort; the pending appeal was the efficacious avenue. The court struck out the judicial review application with costs to the 2nd Respondent.

Key legal issues

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01

Jurisdiction of the ELC over the judicial review application

Holding

The court has jurisdiction to hear judicial review applications concerning use, occupation and title to land under Section 13 of the ELC Act, but this particular application was in substance an appeal against a superior court's decision and was therefore outside its jurisdiction

Reasoning

The court accepted it has statutory jurisdiction over judicial review on land matters, but found the application actually attacked the merits of Justice Yano's judgment in ELC No. 126 of 2019, with an appeal pending in the Court of Appeal. Judicial review cannot be used as an appeal; the proper forum was the pending appeal.

p. 6
02

Scope and purpose of judicial review

Holding

Judicial review examines the decision-making process, not the merits; the court cannot sit as an appellate court over the decision maker

Reasoning

Relying on Municipal Council of Mombasa v Republic, Wednesbury, Sanitam Services and Kunste Hotel, the court reiterated that review courts concern themselves with procedural propriety - jurisdiction of the decision maker, hearing of affected persons, relevant considerations - and only exceptionally with merits.

p. 5
03

Discretion to refuse judicial review remedies

Holding

Certiorari and other review orders are discretionary and may be withheld even where grounds exist, though sparingly

Reasoning

Citing Halsbury's Laws and Bluesea Shopping Mall, the court held that remedies must be the most efficacious in the circumstances; here the pending Court of Appeal appeal was the efficacious avenue, so review remedies would not issue.

p. 6

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision; a court exercising judicial review jurisdiction cannot act as an appellate court over the decider
  • Where there is a clear alternative procedure (a pending appeal) to address a grievance, that procedure should be followed and judicial review is a remedy of last resort
  • Judicial review remedies are discretionary and may be refused even where grounds exist, though sparingly

Court orders

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  1. 1.The applicants' judicial review application is struck out with costs to the 2nd Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Civil Procedure ActSections 1A, 1B, 3A, 63(e), 65(1)(b)
  • Civil Procedure RulesOrder 45
  • Environment and Land Court ActSection 13

Cases cited (13)

  • Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] eKLR

    Jurisdiction is everything; a court must down tools once it finds it lacks jurisdiction

  • Sir Ali Salim vs Shariff Mohammed Sharray
    [1938] KLR

    Judgments without jurisdiction are nullities; jurisdiction cannot be conferred by consent

  • Gerick Kenya Limited v National Environment Management Authority
    [2015] eKLR

    ELC's jurisdiction and power to grant preservation orders

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 others
    [2012] eKLR

    A court's jurisdiction flows from the Constitution or legislation

  • Republic v National Land Commission & another Ex parte Cecilia Chepkoech Leting & 2 others
    [2018] eKLR

    Impropriety of granting oneself jurisdiction on the basis of convenience

  • Municipal Council of Mombasa vs Republic Umoja Consultants Ltd
    Nairobi Civil Appeal No.185 of 2007 (2002) eKLR

    Judicial review concerns the decision-making process, not the merits

  • Associated Provincial Picture Houses, Ltd. vs Wednesbury Corporation
    [1947] 2 All E.R 680

    Grounds for interfering with a decision on review

  • Republic v Public Procurement Administrative Review Board & 2 others Ex Parte - Sanitam Services (E.A) Limited
    [2013] eKLR

    Purpose of judicial review remedies; exceptional circumstances for merits review

  • Seventh Day Adventist Church (East Africa) Limited v Permanent Secretary, Ministry of Nairobi Metropolitan Development & another
    [2014] eKLR

    Judicial review cannot determine contested facts or merits of a dispute

  • Commissioner of Lands v Kunste Hotel Limited
    [1997] eK.L.R (E & L) 1

    Judicial review concerns the decision-making process, not private rights or merits

  • Republic vs Inland Revenue Commissioner Ex Parte Opman International
    1986 1 ALL E.R 328

    Judicial review is a remedy of last resort where alternative procedures fail

  • Speaker of National Assembly v Karume
    C.A Civil Application No. 92 of 1992 (2008 1 K.L.R 426)

    Where a clear procedure exists to address a grievance, it should be followed

  • Bluesea Shopping Mall Limited vs City Council of Nairobi & Others
    C.A Civil Appeal No. 129 of 2013 (Nairobi)

    Discretion to withhold judicial review remedies must be sparingly exercised

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Water Front Holdings Limited v Registrar of Titles Mombasa & another; Kandie (Interested Party)", Case Analysis (2022). Judicial Review 13 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13694/eng@2022-10-25

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