Republic v Land Disputes Tribunal Magarini (Now Defunct) & another; Ngonyo & 5 others (Exparte); Kalama & another (Interested Parties) (Miscellaneous Civil Application 19 of 2019) [2023] KEELC 869 (KLR)
The bottom line
#The High Court in Malindi dismissed an attempt to review its earlier ruling, confirming that complaints about a judge's procedure belong in an appeal, not a review application.
What this practically means
#Executive summary
#Key legal issues
#Whether the ruling of January 25, 2022 contained an error apparent on the face of the record warranting review
No error apparent on the face of the record was demonstrated; the court had properly addressed a duly filed Notice of Preliminary Objection dated January 30, 2020, and any dissatisfaction with that course lay in appeal, not review.
The record showed the respondent was served with the judicial review application and filed a replying affidavit and Notice of Preliminary Objection dated January 30, 2020. On February 10, 2020 counsel confirmed service of the preliminary objection. The court properly heard the jurisdictional objection first as procedure dictates. An applicant aggrieved by that course should appeal; a misconceived procedure or misapprehension of law is not a ground for review under Section 80 and Order 45 Rule 1.
Legal principles established
#- When a preliminary objection is raised on the jurisdiction of the court, it must be heard first unless withdrawn or the parties agree it be dealt with at the full hearing.
- An order cannot be reviewed merely because the judge decided on an incorrect procedure, misapprehended the law or exercised discretion wrongly; such complaints lie in appeal.
Court orders
#- 1.The application for review dated February 14, 2022 is dismissed
- 2.Costs of the application to the respondent
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act (Cap 21) and Order 45 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Land Disputes Tribunal Magarini (Now Defunct) & another; Ngonyo & 5 others (Exparte); Kalama & another (Interested Parties) (Miscellaneous Civil Application 19 of 2019) [2023] KEELC 869 (KLR)", Case Analysis (2023). Notice of Motion dated February 14, 2022 (Judicial Review application dated December 16, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/869/eng@2023-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.