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ELCDismissedEnvironment and Land Judicial Review Case 2 of 2021· [2022] KEELC 14790 (KLR)

Republic v Naivasha District Land Registrar & 2 others; Nganga (Suing as trustees of the Members Naivasha Uiguano Group) & 2 others (Exparte); Muneria & another (Applicant) (Suing as trustees on behalf of 94 other Members of Naivasha Uiguano Group)

Environment and Land Court
16 November 2022
11,302 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~45 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled it cannot review its own judicial review judgment — the only option for an unhappy party is to appeal.

What this practically means

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Executive summary

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The applicants, claiming to be trustees of the Naivasha Uiguano Group with 94 other members, moved the court by Notice of Motion dated April 19, 2022 seeking to be enjoined as interested parties, and to have the court's judgment of February 28, 2022 in this judicial review suit set aside and reviewed with a de novo hearing. They contended their titles, arising from subdivision of LR Gilgil/Gilgil Block 1/7413 (Kekopey), were expunged by the judgment without their being heard, contrary to Article 50. The ex parte applicants opposed, raising a preliminary objection on the applicants' locus as trustees, arguing the titles were processed in violation of a stay order, that the judgment had been executed, and that the court was functus officio, the sole remedy being an appeal under Section 8(5) of the Law Reform Act. The court framed two issues: whether the applicants could be joined after judgment and execution, and whether a judicial review judgment is reviewable under the Civil Procedure Rules or only appealable. Following the Court of Appeal in Biren Amritlal Shah v Republic, the court held that in exercising its special jurisdiction under the Law Reform Act and Order 53, it has no jurisdiction to review its own judicial review judgment; Order 45 and Section 80 CPA do not apply. The trusteeship dispute was held unsuitable for judicial review. Inherent jurisdiction was considered but declined: unlike James Njuguna Njoroge and Kenya Bus Service, no manifest injustice or court mistake was shown, the applicants being members of the same group likely aware of the proceedings. The application was dismissed with costs to the ex parte applicants.

Key legal issues

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01

Whether a judicial review judgment is amenable to review under Section 80 CPA and Order 45

Holding

It is not; judicial review is a special jurisdiction under the Law Reform Act and Order 53, and the only recourse is an appeal

Reasoning

The court relied on the Court of Appeal decision in Biren Amritlal Shah, holding that where the High Court exercises its special jurisdiction under the Law Reform Act it has no jurisdiction to review its own orders. Section 8(3) makes the order final and Section 8(5) provides for appeal. The FAA contains no similar provision, so the LRA and Order 53 govern.

p. 12
02

Whether the court's inherent jurisdiction can be invoked to set aside the judgment

Holding

Inherent jurisdiction exists in principle but was declined on the facts; no manifest injustice or court mistake was demonstrated

Reasoning

The court distinguished James Njuguna Njoroge and Kenya Bus Service, where ex parte proceedings or consent judgments caused manifest injustice to persons unaware of proceedings. Here the applicants were members of the same group in a leadership wrangle, likely aware of the proceedings, and were not dispensed with as ordinary members; substantive disputes belong in other fora.

p. 20
03

Whether the applicants' locus based on trusteeship could bar their application

Holding

No; the dispute over who are the proper trustees cannot be determined in judicial review and cannot deny the applicants a hearing

Reasoning

The court held that the internal trusteeship dispute of the Naivasha Uiguano Group is not a matter for judicial review, echoing Turbo Munyaka. The ex parte applicants did not dispute the applicants' membership of the group, which could have entitled them to seek joinder and be heard.

p. 9

Legal principles established

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  • A court has no jurisdiction to review its own judgment in judicial review proceedings; the sole remedy of an aggrieved person is an appeal to the Court of Appeal under Section 8(5) of the Law Reform Act
  • Rules outside Order 53, including Order 45 of the Civil Procedure Rules, do not apply to facilitate setting aside a judicial review judgment
  • Any person has a right to a fair hearing, and any person whom the court considers ought to be served should be served with the judicial review notice of motion under Order 53 rule 4

Court orders

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  1. 1.The Notice of Motion dated April 19, 2022 is dismissed
  2. 2.Costs of the application awarded to the ex parte applicants

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 40
  • Civil Procedure ActSection 80; Section 3; Section 3A
  • Civil Procedure RulesOrder 1 Rule 10; Order 22 Rule 22; Order 45; Order 53 rules 2, 3 and 4
  • Law Reform ActSection 8(3) and 8(5)
  • Fair Administrative Action ActSections 7 and 8
  • Land Registration ActSection 80(2)
  • Trustees Actnot specified
  • Societies Actnot specified
  • Co-operative Societies ActSections 76 and 77
  • Environment and Land Court Actnot specified

Cases cited (35)

  • Accredo Ag & 3 Others v Steffano Uccelli & Another
    2017 eKLR

    Review may be sought by any person aggrieved, including non-parties

  • JMK v MKM & another
    2015 eKLR

    Locus of non-parties to apply for review; natural justice and rectification of register

  • Republic v Chief Land Registrar & 2 Others Ex Parte Michael Njenga Waweru
    2017 eKLR

    Residual inherent jurisdiction to correct mistakes in judicial review; distinguished as a consent judgment

  • Nakumatt Holdings Limited v Commissioner of Value Added Tax
    [2011] eKLR

    Superior court's residual power to correct its own mistakes

  • Daniel Nganga Kamande v Ngucanirio Famers Company Ltd
    [2012] eKLR

    Judicial review is a special procedure neither criminal nor civil

  • Mukisa Biscuit Manufacturing Company Ltd v West End Distributors
    [1969] EA 696

    Definition of a proper preliminary objection

  • Wamboi v Mwangi & 3 others
    [2021] KECA 144 KLR (CIV)

    Earlier title prevails over later title

  • National Bank of Kenya v Wilson Ndolo Ayah
    [2009] eKLR

    Ineffective procedure for revocation of trustees

  • Grace Wanjiru Nganga & 2 others v Elias Ngugi Nganga & another
    [2018] eKLR

    Ex parte applicants appointed trustees by court

  • Elizabeth O Odhiambo v South Nyanza Sugar Company Limited
    [2019] eKLR

    Parties bound by their pleadings

  • Daniel K Yego & 3 others v Paulina Nekesa Kode
    [2016] eKLR

    Replacement of trustees in violation of law not recognized

  • Mukoma Wa Njiri v National Land Commission & another
    [2021] eKLR

    Non-party needs prior leave for joinder to accrue locus

  • Biren Amritlal Shah & another v Republic & 3 others
    [2013] eKLR

    High Court has no jurisdiction to review its own judicial review orders; remedy is appeal

  • Republic v Land Registrar Trans Nzoia County & another Ex-Parte Turbo Munyaka Cooperative Society Limited & 4 others
    [2017] eKLR

    Non-service of judicial review motion; court cannot review own judgment; internal disputes for other fora

  • Annabella Kiriinya & Batram Muthoka (Agricultural Society of Kenya)
    Judicial Review Application No 55/2020

    Judicial review judgment final; only recourse is appeal

  • Nakuru Industries Limited v Sirbrook Kenya Limited
    [2017] eKLR

    Review must bring itself within Order 45 Rule 1(1) parameters

  • Robert Tom Martins Kibisu v Republic
    [2018] eKLR

    Parameters for exercise of inherent power to set aside own judgment

  • Merry Beach Limited v Attorney General & 18 others
    [2018] eKLR

    Presumption of attentiveness to court proceedings; lis pendens

  • Grace Kamene v Joyce Rigiri W/O David Mbogori, Ashford Gerrard Riungu & Another
    [2022] eKLR

    Doctrine of lis pendens

  • Moonlow Assets Limited v National Land Commission & 4 Others Ralph Edward Nzwii & Another
    [2021] eKLR

    Doctrine of lis pendens

  • Republic v District Land Registrar Nakuru Ex-Parte Lawi Kigen Kiplagat; Lee Maiyani Kinyanjui (Interested Party)
    [2021] eKLR

    Land ownership and fraud disputes belong in an ordinary suit, not judicial review

  • Republic v The Chief Land Registrar & Another Ex parte James Njoroge Njuguna
    [2012] eKLR

    Inherent jurisdiction to set aside judicial review judgment wrongly entered; distinguished on facts

  • Commissioner of Lands v Kunste Hotels Ltd
    (1995-1998) 1 EA 1

    Judicial review applications are neither criminal nor civil in nature

  • Kuria Mbae v The Land Adjudication Officer – Chuka and Another
    Nairobi HC Misc Appl No 257 of 1983

    Judicial review order final, subject only to appeal

  • Republic v Municipal Council of Mombasa and Others ex-parte Adopt-A-Light Limited
    Nairobi CA Civil Appl No 15 of 2007 [2008] eKLR

    Finality of prerogative orders; distinguished as a stay application

  • Republic v Public Procurement Administrative Review Board ex-parte Kenya Electricity Generating Company Limited
    CA Civil Appl No 63 of 2010 [2010] eKLR

    Certiorari order cannot be stayed pending appeal; set aside only in the appeal

  • Kenya Bus Service Ltd and Others v Attorney General and the Minister for Transport and Others
    Nairobi HC Misc 413 of 2005

    Inherent powers to set aside ex parte orders; distinguished as interlocutory

  • Magon v Ottoman Bank
    [1967] EA 609

    Inherent jurisdiction to set aside judgment wrongly entered

  • Mulira v Dass
    [1971] EA 227

    Inherent jurisdiction to set aside judgment wrongly entered

  • Ali Bin Khamis v Salim Kirobe
    [1956] EACA

    Inherent jurisdiction to set aside judgment wrongly entered

  • Republic v Registrar of Titles and Another ex parte Saida Twahir Mohamed Hatimy
    Mombasa HC Misc Appl No 46 of 2005 [2005] eKLR

    Orders obtained without due service may be set aside as nullity

  • Ryan Investments Ltd & Another v The United States of America
    [1970] EA 675

    Section 3A CPA reserves but does not confer inherent jurisdiction

  • Republic v The Public Procurement Complaints, Review and Appeals Board & Another Ex Parte Jacorossi Impresse Spa
    Mombasa HCMA No 365 of 2006

    Inherent jurisdiction to make orders necessary for ends of justice

  • WEA Records Limited v Visions Channel 4 Limited & Others
    [1983] 2 All ER 589

    Inherent jurisdiction of the court

  • R v Land Registrar Kajiado & 2 Others Ex Parte John Kigunda
    HCMA No 1183 of 2004

    Setting aside ex parte orders

Jurisdiction invoked
Order 53 of the Civil Procedure Rules and Sections 8(3) and 8(5) of the Law Reform Act; Environment and Land Court Act

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 Naivasha District Land Registrar & 2 others; Nganga (Suing as trustees of the Members Naivasha Uiguano Group) & 2 others (Exparte); Muneria & another (Applicant) (Suing as trustees on behalf of 94 other Members of Naivasha Uiguano Group)", Case Analysis (2022). Environment and Land Judicial Review Case 2 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14790/eng@2022-11-16

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