Republic v County Government of Machakos & 2 others; Kavisu & another (Exparte Applicants); Injora & another (Interested Parties)
The bottom line
#Kenya's Environment and Land Court struck out an attempt to use judicial review to stop criminal charges, confirming it cannot interfere with criminal prosecutions.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over judicial review of criminal proceedings
The court held it lacked jurisdiction because the fulcrum of the application was the criminal prosecution in the Chief Magistrate's Court, not a land dispute within Article 162(2)(b) and Section 13 of the ELC Act.
The court applied Article 162(2)(b) and Section 13 of the Environment and Land Court Act, and the Owners of Motor Vessel 'Lillian S' test on jurisdiction. It found that although the applicants framed the dispute as one over land ownership, the actual challenge was to the decision to charge them in a criminal case, which falls outside the ELC's mandate. Jurisdiction being absent, the court could not make any further step.
Whether leave to apply for judicial review should operate as stay of criminal proceedings
Having declined to grant leave, the court declined to determine whether leave should operate as a stay.
The court reasoned that the question of stay was contingent on the grant of leave under Order 53 Rule 1(4) of the Civil Procedure Rules. Since leave was refused for want of jurisdiction, the ancillary question of stay did not arise for determination.
Legal principles established
#- The Environment and Land Court lacks jurisdiction to entertain judicial review applications for leave to quash decisions emanating from a criminal process
- A party claiming a land dispute should commence civil proceedings to tender evidence to prove ownership rather than resort to judicial review of criminal process
Court orders
#- 1.The instant Notice of Motion Application is unmerited and is struck out
- 2.No order as to costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Government of Machakos & 2 others; Kavisu & another (Exparte Applicants); Injora & another (Interested Parties)", Case Analysis (2023). Environment and Land Judicial Review Case E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17114/eng@2023-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.