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ELCDismissedEnvironment and Land Judicial Review Case E002 of 2023· [2023] KEELC 20336 (KLR)

Republic v County Government of Narok & another; Ochweri (Exparte Applicant)

Environment and Land Court of Kenya
4 October 2023
2,812 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 dismissed a judicial review bid over Narok land, ruling that ownership disputes need an ordinary civil suit, not judicial review.

What this practically means

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Executive summary

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Eng Daniel Ogwoka Ochweri, granted leave on 23rd February 2023, moved the Environment and Land Court at Narok by Notice of Motion dated 1st March 2023 seeking orders of prohibition and mandamus to stop the County Government of Narok from claiming possession of three parcels - Narok Township Blocks 11/1033, 11/1034 and 11/1035 - and costs. He deposed that he and Linet Odhiambo Ochweri purchased the parcels under sale agreements, received allotment letters (since misplaced), paid registration fees and rates, and that the County demolished structures on the parcels without notice, breaching his rights under Articles 40 and 47 of the Constitution. The respondents opposed, arguing that judicial review is not the forum for determining ownership of land, which requires viva voce evidence and cross-examination, and that the proceedings prejudiced their right to be heard under Article 50. Only the 2nd respondent filed written submissions. Mbogo J framed the issue as whether the applicant was entitled to prohibition and mandamus. Applying the Gathenji Njoroge and Municipal Council of Mombasa authorities, the court held that judicial review concerns the decision-making process, not private rights or disputed facts; resolving the ownership dispute would require findings of fact on viva voce evidence, outside the purview of judicial review. The court dismissed the notice of motion as the substantive suit, directing the parties to ventilate the merits through an ordinary civil suit, with each party bearing its own costs.

Key legal issues

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01

Whether judicial review is the appropriate forum for a dispute over ownership of land and possession

Holding

No - the dispute raises disputed issues of fact requiring viva voce evidence, which judicial review cannot accommodate; the proper avenue is an ordinary civil suit

Reasoning

The ex-parte applicant claimed ownership of three parcels based on sale agreements, allotment letters (misplaced) and payment of rates, while the 1st respondent claimed the parcels were public land and that payment of rates is not conclusive proof of ownership. Resolving these competing claims would require findings of fact on evidence tested by cross-examination, which falls outside judicial review's concern with the decision-making process rather than private rights.

p. 5
02

Scope of the remedies of prohibition and mandamus

Holding

Prohibition looks to the future and cannot quash a decision already made; mandamus compels performance of a statutory public duty and cannot quash what has already been done

Reasoning

Relying on Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge, the court restated that prohibition prevents contemplated decisions while certiorari quashes decisions already made, and mandamus compels performance of statutory duties but is the wrong remedy where the complaint is wrongful performance of a duty. The applicant's grievances over demolitions already carried out could not be remedied by these orders.

p. 4

Legal principles established

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  • Where determination of a dispute requires the court to decide disputed issues of fact, it is not a suitable case for judicial review
  • Judicial review is concerned with the decision-making process, not the merits of the decision or private rights
  • Prohibition cannot quash a decision already made; it only prevents a contemplated decision
  • Mandamus compels performance of a public duty imposed by statute and cannot quash what has already been done

Court orders

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  1. 1.The notice of motion application dated 1st March 2023, being the substantive suit, is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 62(1)
  • Civil Procedure Act

Cases cited (8)

  • Kenya National Examinations Council versus Republic Ex parte Geoffrey Gathenji Njoroge & Others
    Civil Appeal No. 266 of 1996 [1997] eKLR

    Scope of certiorari, mandamus and prohibition; prohibition cannot quash a decision already made; mandamus compels statutory public duties

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

    Judicial review concerns the decision-making process, not the merits of the decision

  • Scorpion Properties Limited versus Nairobi County Governor (Mike Mbuvi-Sonko) & Another
    [2020] eKLR

    Cited by 2nd respondent - judicial review not a forum for ownership disputes

  • Republic versus National Land Commission Ex-parte Ephrahim Muriuki Wilson & Others
    [2018] eKLR

    Cited by 2nd respondent - judicial review not a forum for ownership disputes

  • Republic versus Cabinet Secretary, Ministry of Interior & Co-ordination of National Government & 2 Others Ex-parte Kisimani Holdings Limited
    [2015] eKLR

    Cited by 2nd respondent - judicial review not a forum for ownership disputes

  • Republic versus District Land Registrar, Nakuru Ex-Parte Lawi Kigen Kiplagat; Lee Maiyani Kinyanjui (Interested Party)
    [2021] eKLR

    Cited by 2nd respondent - need for viva voce evidence in land ownership disputes

  • R v Secretary of State for Education and Science ex parte Avon County Council
    (1991) 1 All ER 282

    Purpose of judicial review is to ensure fair treatment by the authority, not to substitute the court's opinion

  • Halsbury's Laws of England 4th Edition Vol (1)(1) Para 60

    Purpose of judicial review is fair treatment; court must not usurp the authority's decision-making power

Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court under Article 47 of the Constitution and the Fair Administrative Action framework; leave granted on 23rd February 2023

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 County Government of Narok & another; Ochweri (Exparte Applicant)", Case Analysis (2023). Environment and Land Judicial Review Case E002 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20336/eng@2023-10-04

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