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ELCDismissedJudicial Review Application (Notice of Motion dated May 25, 2022), Homa Bay· [2023] KEELC 383 (KLR)

Republic v Attorney General & another; Odhim (Exparte); Mark & another (Interested Parties) (Environment and Land Judicial Review Miscellaneous Application E003 of 2022) [2023] KEELC 383 (KLR)

Environment and Land Court of Kenya
30 January 2023
1,415 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner asking the court to force the land registrar to fix a boundary had to wait, because the same dispute was already before a lower court.

What this practically means

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Executive summary

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The ex parte applicant, Samuel Orero Odhim, sought an order of mandamus compelling the 2nd respondent, the land registrar Homa-Bay county, to determine the boundary between LR Karachuonyo/Konyango/3422 and LR Central Karachuonyo/Konyango/655/656 in accordance with sections 18(2) and 19(2) of the Land Registration Act. He asserted that a survey exercise carried out on October 5, 2021 produced a report dated October 21, 2021, but the registrar had refused or ignored his statutory duty to determine the boundary. Leave was granted on May 19, 2022 and the notice of motion followed. The respondents were served but did not reply. The interested parties, owners of LR 3422, opposed the application through a replying affidavit and submissions, contending that the survey report is yet to be filed in Oyugis SPM's Environment and Land Case No. 47 of 2022, in which the applicant is the defendant, and that the application is premature and an abuse of process. They also challenged jurisdiction, contending the disputed property falls within the jurisdiction of the land registrar Rachuonyo based at Kosele. The court held that mandamus is a judicial review relief under Article 23(3)(f) of the Constitution but found that the ends of justice required the pending magistrate's court suit to proceed first, invoking the exhaustion principle and sections 1A, 1B, 3, 3A, 5 and 6 of the Civil Procedure Act and the Kabiru, Jubilee Party and Goldenberg/Kilach authorities. The application was found unmeritorious and stayed under section 6 of the CPA, with no orders as to costs. Judgment delivered at Homa Bay on January 30, 2023 by G M A Ong'ondo, J.

Key legal issues

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01

Entitlement to mandamus to compel the land registrar to determine boundaries under sections 18(2) and 19(2) of the Land Registration Act

Holding

Mandamus is not available at this point because the boundary dispute is also the subject of a pending suit before the magistrate's court, which should be allowed to proceed first

Reasoning

The court traced mandamus to Article 23(3)(f) of the Constitution and Black's Law Dictionary. However, the interested parties showed that the survey report is yet to be presented in Oyugis SPM's Environment and Land Case No. 47 of 2022, where the applicant is defendant and the suit property is among those in dispute. Applying the exhaustion principle, sections 1A, 1B, 3, 3A, 5 and 6 of the CPA and the Kabiru, Jubilee Party and Goldenberg/Kilach decisions, the court held the two matters should not run simultaneously.

p. 4
02

Whether the judicial review application should be stayed pending the magistrate's court suit

Holding

The application was stayed pursuant to section 6 of the Civil Procedure Act pending hearing and determination of the magistrate's court civil suit

Reasoning

Section 6 of the CPA provides for stay of suit where a prior suit between the same parties over the same matter is pending. The court found the applicant is the defendant in the magistrate's court suit and LR no Central Karachuonyo/Konyango/656, part of the property in dispute in the application, is also in issue there. The ends of justice dictated that the magistrate's court proceed to hear and determine its suit first, and the judicial review application was accordingly stayed.

p. 4

Legal principles established

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  • Where a suit involving the same subject matter is pending before a magistrate's court, the ends of justice require that the magistrate's court proceed to hear and determine it, and parallel proceedings before the High Court should be stayed under section 6 of the Civil Procedure Act
  • A statutory body's jurisdiction should not be interfered with; it should be allowed to handle and determine the issues before it

Court orders

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  1. 1.The application be and is hereby stayed pursuant to section 6 of the Civil Procedure Act
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 23(3)(f)
  • Civil Procedure Rules, 2010Order 53 rules 1, 2, 3 and 4
  • Land Registration ActSections 18(2) and 19(2)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 1A, 1B, 3, 3A, 5, 6, 11, 12, 13 and 15

Cases cited (4)

  • Ogada vs Mollin
    (2009) KLR 620
  • Geoffrey Muthiga Kabiru and 2 others vs Samwel Munga Henry and 1756 others
    (2015) eKLR
  • Republic vs Jubilee Party and another Exparte Wanjiku Muhia and another
    (2017) eKLR
  • Judicial Commission of Inquiry into Goldenberg Affair and 3 others vs Kilach
    (2003) KLR 249
Jurisdiction invoked
Article 23(3)(f) of the Constitution of Kenya, 2010 (judicial review relief); Order 53 rules 1, 2, 3 and 4 of the Civil Procedure Rules, 2010

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 Attorney General & another; Odhim (Exparte); Mark & another (Interested Parties) (Environment and Land Judicial Review Miscellaneous Application E003 of 2022) [2023] KEELC 383 (KLR)", Case Analysis (2023). Judicial Review Application (Notice of Motion dated May 25, 2022), Homa Bay. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/383/eng@2023-01-30

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