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ELCDismissedEnvironment and Land Miscellaneous Application E021 of 2022· [2023] KEELC 16787 (KLR)

Kibore & another v Land Registrar, Machakos & 2 others

Environment and Land Court at Machakos
12 April 2023
COChristine A Ochieng
2,758 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Machakos refused to let land buyers use judicial review to settle an ownership dispute, directing them to file an ordinary civil suit instead.

What this practically means

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Executive summary

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The Ex-parte Applicants, Karanu Kibore and Caroline Wanjiku Karanu, sought leave by Chamber Summons dated April 5, 2022 to institute judicial review orders of mandamus and certiorari to quash the registration of the 3rd Respondent, Musau Mutua, as proprietor of Mlolongo Phase III Plot No 2620, to compel the Land Registrar to effect transfer of the plot to them, and for the leave to operate as a stay of dealings on the plot. They claimed to have purchased the plot for Kshs 250,000 in 2010 from Mutuku Kilonzo, a member of the 2nd Respondent company, and to have been paying rates. The 1st Respondent opposed, arguing the dispute was a land ownership matter for a civil suit and unsupported by evidence. The 2nd Respondent's director deponed that its records showed the original allottee Musau Mutua died in 2009 without transferring the plot, no evidence existed of the alleged purchase chain, and the plot still belonged to his estate. The court framed one issue: whether the Applicants were entitled to leave and whether it should operate as stay. Relying on authority that judicial review addresses the decision-making process rather than private rights or disputed facts, the court held the dispute was essentially one of land ownership requiring viva voce evidence in a civil suit, and that the 2nd and 3rd Respondents were not public entities. Leave was refused and the application dismissed with no order as to costs.

Key legal issues

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01

Whether the Applicants were entitled to leave to institute judicial review of mandamus and certiorari

Holding

Leave was refused because the dispute is a private land ownership dispute requiring viva voce evidence, and the 2nd and 3rd Respondents are not public entities or persons

Reasoning

The court held judicial review examines the decision-making process, not merits or private rights. The Applicants' claim rested on contested facts about the purchase chain from Mutuku Kilonzo and the registration of the 3rd Respondent, with no Certificate of Title produced. The allotting company's records showed the plot still belonged to the estate of a deceased allottee. Such contested factual issues belong in a civil suit, not judicial review proceedings.

p. 5
02

Whether leave, if granted, should operate as stay of dealings on the plot

Holding

Not determined in the Applicants' favour as leave itself was refused and the application dismissed

Reasoning

Since the court found the Applicants not entitled to leave, the ancillary prayer that leave operate as stay under Order 53 Rule 1(4) fell away. The application was dismissed in its entirety with no order as to costs.

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits or private rights; where resolution requires determination of disputed issues of fact, the matter is unsuitable for judicial review and parties must ventilate it in an ordinary civil suit

Court orders

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  1. 1.The Chamber Summons Application dated April 5, 2022 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 1

Cases cited (11)

  • Kingdom Kenya 01 Limited v District Land Registrar, Narok & Fifteen (15) others
    [2018] eKLR

    Description of judicial review as concerned with decision-making process, not private rights or merits

  • Commissioner of Lands v Hotel Kunste
    [1997] eKLR

    Judicial review concerned with decision-making process

  • David Mugo t/a Manyatta Auctioneers v Republic
    Civil Appeal No 265 of 1997 (UR)

    JR available even where alternative legal or equitable remedies exist

  • Zakayo Michubu Kibwange v Lydia Kagina Japheth and 2 others
    [2014] eKLR

    Candour required of JR applicants; JR may be invoked where issues are contested

  • Republic v National Transport & Safety Authority & 10 others Ex parte James Maina Mugo
    [2015] eKLR

    Disputes requiring determination of contested facts are unsuitable for judicial review

  • Republic v County Council of Kwale & Another Ex parte Kondo & 57 Others
    Mombasa HCMA No 384 of 1996

    Cited by 1st and 2nd Respondents on threshold for leave

  • Council of Civil Servants Union v Minister for Civil Service
    [1985] AC 2

    Cited by 1st Respondent on judicial review principles

  • Republic v Director Land Administration Ministry of Lands and Physical Planning & 2 Others Ex parte Roysa Community Development Society Ltd
    [2021] eKLR

    Cited by 1st Respondent on leave threshold in land registration disputes

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

    Cited by 1st Respondent on judicial review principles

  • Republic v District Land Registrar, Nakuru Ex parte Lawi Kigen Kiplagat: Lee Maiyani Kinyanjui (Interested Party)
    [2021] eKLR

    Cited by 1st Respondent on leave threshold

  • Sharma v Brown Antoine
    [2007] 1 WLR 780

    Cited by 2nd Respondent on threshold for leave

Jurisdiction invoked
Order 53 Rule 1 of the Civil Procedure Rules - application for leave to institute judicial review

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, "Kibore & another v Land Registrar, Machakos & 2 others", Case Analysis (2023). Environment and Land Miscellaneous Application E021 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16787/eng@2023-04-12

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