Republic v County Government of Narok & another; Ochweri (Exparte Applicant)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether judicial review is the appropriate forum for a dispute over ownership of land and possession
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
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.
Scope of the remedies of prohibition and mandamus
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
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.
Legal principles established
#- 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
#- 1.The notice of motion application dated 1st March 2023, being the substantive suit, is dismissed
- 2.Each party to bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.