Republic v District Criminal Investigations Officer, Rongo & 3 others; Makongo (Interested Party); Nyamanga (Exparte) (Miscellaneous Civil Application 4 of 2018) [2023] KEELC 588 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a judicial review bid to stop a criminal prosecution, ruling the criminal nature of the case put it outside the court's jurisdiction.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Environment and Land Court over judicial review orders directed at criminal proceedings for forcible entry/trespass
The ELC lacks jurisdiction; the core dispute is criminal in nature and belongs in the appropriate forum
The court traced its jurisdiction to Article 162(2)(b) and sections 4 and 13 of the ELC Act. It held that although the Applicant framed the dispute as one of land ownership, the orders sought were directed at stopping criminal proceedings for forcible entry/trespass, which is criminal in nature. Judicial review also cannot determine ownership of private land as between individuals. Having no jurisdiction, the court struck out the motion.
Whether ownership of the suit parcel could be determined within judicial review
No; the scope of judicial review writs is specific and does not extend to determining ownership of private land between individuals
Relying on Municipal Council of Mombasa v Republic, the court held that judicial review concerns the decision-making process, not merits. Determining ownership status and rights over land between private individuals falls outside the scope of certiorari and prohibition, and any such claim required a different forum.
Legal principles established
#- Jurisdiction flows from the Constitution or statute and cannot be conferred by consent or acquiescence; a court without jurisdiction must down its tools
- Judicial review is concerned with the decision-making process, not the merits of the decision
- A judicial review application cannot be used to determine ownership of private land between individuals
Court orders
#- 1.The Notice of Motion dated 25th April, 2018 is struck out
- 2.Each party to bear their own costs of the Application
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution read with sections 4 and 13 of the Environment and Land Court Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v District Criminal Investigations Officer, Rongo & 3 others; Makongo (Interested Party); Nyamanga (Exparte) (Miscellaneous Civil Application 4 of 2018) [2023] KEELC 588 (KLR)", Case Analysis (2023). Judicial Review Application; Notice of Motion dated 25th April 2018 (ex-parte Chamber Summons dated 20th April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/588/eng@2023-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.