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ELCDismissedEnvironment and Land Judicial Review Case E002 of 2022· [2023] KEELC 16236 (KLR)

Republic v Attorney General & another; Kathenge & 3 others (Interested Parties); Kamusina (Exparte Applicant)

Environment and Land Court of Kenya
14 March 2023
LKL. G. Kimani
5,034 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kitui Environment and Land Court dismissed a judicial review bid because the applicant had not first used remedies available in the lower court handling his case.

What this practically means

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Executive summary

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The ex parte applicant, Musyoka Kamusina, administrator of the estate of Musya Mutua (deceased), sought judicial review orders of mandamus, prohibition and certiorari to quash and restrain execution of a consent order recorded on December 2, 2021 and issued on December 9, 2021 in Chief Magistrate's Civil Case No 67 of 2019 at Kitui. That suit, filed by the 1st interested party for recovery of Kshs 972,000 arising from the sale of Plot No 15 Mosa Market, resulted in a consent order directing handover and transfer of the plot to the plaintiff and restraining the applicant from interfering with it. The applicant, who was not a party to the suit, claimed he was condemned unheard, that the court exceeded its mandate by converting a debt claim into a land transfer, and that the process was tainted with illegality and procedural impropriety. The respondents and interested parties opposed, contending the application was an abuse of process, raised contested facts unsuitable for judicial review, and that the applicant had a pending application in the lower court to be joined, stay execution and set aside the consent order, plus a pending revocation summons in Succession Cause No 89 of 2019. The court, L.G. Kimani J, held that under Sections 30 and 34 of the Civil Procedure Act and Order 22 Rules 51-54, the court that passed the decree determines execution questions, and that the exhaustion doctrine applies even where the alternative forum is a court. Filing judicial review while the lower court application was pending was mischievous and an abuse of process. The notice of motion was dismissed with costs to the respondents and interested parties.

Key legal issues

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01

Whether the ex parte applicant was entitled to judicial review orders against the consent order

Holding

No - the applicant failed to exhaust the remedies available in the executing court and in the succession cause before resorting to judicial review

Reasoning

The court held that under Sections 30 and 34 of the Civil Procedure Act and Order 22 Rules 51-54, the court that passed the decree determines execution questions. The applicant had a pending application dated December 8, 2021 to set aside the consent order, and a revocation summons was pending in the succession cause. Filing judicial review while those were pending was mischievous and an abuse of process; the exhaustion doctrine applies even where the alternative forum is within the court system.

p. 10

Legal principles established

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  • Where a clear procedure for redress is prescribed by statute, it must be strictly followed before resorting to judicial review
  • The court that passed a decree has power to determine all questions arising in its execution
  • Judicial review is a last resort; alternative remedies must first be exhausted

Court orders

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  1. 1.The Notice of Motion dated February 28, 2022 is dismissed with costs to the Respondents and interested parties

Authorities

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Legislation

  • Law Reform ActCap 26, Section 8
  • Fair Administrative Action ActSections 7, 8, 9(2), 9(3), 9(4), 10, 11, 12
  • Constitution of Kenya 2010Articles 23(3), 159, 160(1)
  • Civil Procedure ActSections 6 (Judicature Act Cap 8), 30, 34
  • Civil Procedure Rules 2010Order 22 Rules 51, 52, 53, 54
  • Environment and Land Court ActSection 13(7)
  • Law of Succession ActCap 160

Cases cited (11)

  • Republic v Fire Arms Licensing Board Attorney General
    Judicial Review No 43 of 2018
  • Republic v Parliamentary Service Commission
    Miscellaneous No 3 of 2021
  • Kenya National Examination Council vs Republic
    Civil Appeal 266 of 1996
  • Council of Civil Service Union v Minister for Civil Service

    Decision made after due process was followed

  • Republic vs Judicial Service Commission Ex parte Pareno
    (2007) 1 KLR

    Judicial review court cannot assume appellate jurisdiction

  • Municipal Council of Mombasa vs Republic & Umoja Consultants Ltd
    Civil Appeal No 185 of 2001

    Judicial review concerns decision-making process, not merits

  • Bellevue Development Company Ltd v Francis Gikonyo & 3 others
    (2020) eKLR

    One should appeal or review rather than sue a judicial officer for an unfavourable decision

  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR

    Statutory procedures for redress must be strictly followed

  • Market Plaza Limited v Commissioner for Lands & 3 others
    [2019] eKLR

    Judicial review is a last resort, granted only in exceptional circumstances

  • Republic v National Environmental Management Authority
    [2011] eKLR

    Criteria for exceptional circumstances justifying judicial review despite alternative remedy

  • Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others
    [2015] eKLR

    Dispute resolution mechanisms must be exhausted before invoking court jurisdiction

Jurisdiction invoked
Law Reform Act Cap 26; Civil Procedure Rules 2010; Fair Administrative Action Act No. 4 of 2015; Constitution of Kenya 2010; Environment and Land Court Act 2011 Section 13(7)

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; Kathenge & 3 others (Interested Parties); Kamusina (Exparte Applicant)", Case Analysis (2023). Environment and Land Judicial Review Case E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16236/eng@2023-03-14

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