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ELCDismissedNotice of Motion dated February 14, 2022 (Judicial Review application dated December 16, 2019)· [2023] KEELC 869 (KLR)

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)

High Court of Kenya
13 February 2023
1,277 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling on a Notice of Motion dated February 14, 2022 in which the ex parte applicants in a Malindi judicial review matter sought review of the ruling and orders of January 25, 2022, contending there was an error apparent on the face of the record because the court had addressed itself on a nonexistent Preliminary Objection of which they claimed never to have been served or aware. The interested parties, through a replying affidavit sworn by Harrison Kazungu Katana, opposed the application, asserting service of the Preliminary Objection dated January 30, 2020, that the court determined the matter on merit, that the application was an abuse of process and res judicata given the dismissal of Appeal No. 7 for want of prosecution. Only the respondent filed submissions. The court, applying Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules, the Supreme Court's principles in Parliamentary Service Commission v Martin Nyaga Wambora and National Bank of Kenya v Ndun'gu Njau, found the record showed service of the preliminary objection and that it was procedurally proper to hear a jurisdictional objection first. Any grievance with that course lay in appeal, not review. The application was dismissed with costs on February 13, 2023.

Key legal issues

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01

Whether the ruling of January 25, 2022 contained an error apparent on the face of the record warranting review

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application for review dated February 14, 2022 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure Rules, 2010Order 21 [1]

Cases cited (4)

  • Parliamentary Service Commission v Martin Nyaga Wambora & others
    2018 eKLR
  • National Bank of Kenya Limited v Ndun'gu Njau
    [1979] eKLR
  • Gurbachan Singh Kalsi v Yowani Elkori
  • Virgin Atlantic Ltd v Zodiac Seats UK Limited
Jurisdiction invoked
Section 80 of the Civil Procedure Act (Cap 21) and Order 45 Rule 1 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 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.