Republic v National Land Commission; Kanyari & 7 others (Exparte Applicants); County Government of Nyandarua (Interested Party)
The bottom line
#The Environment and Land Court dismissed eight landowners' bid to block re-allocation of their plots, ruling the dispute belongs in a civil suit, not judicial review.
What this practically means
#Executive summary
#Key legal issues
#Whether judicial review was the appropriate vehicle to challenge the NLC's notice of re-allocation
No - the dispute goes to the legality and validity of the Applicants' own allocations, involving contested facts that cannot be resolved on affidavit evidence in judicial review proceedings
The Interested Party seriously contested the Applicants' allocations as unprocedural, illegal, void and possibly forged, citing wrong file references and absence of approved PDPs and allocation minutes. Such contested factual and legality questions require a full civil suit with oral evidence and cross-examination, not judicial review which examines only the decision-making process. The Applicants already had a pending civil suit (Nyahururu CM ELC No. 356 of 2018) which they should prosecute.
Whether the Applicants were denied natural justice by the NLC
Not determined on the merits; the court declined to resolve the dispute in judicial review proceedings
The Applicants argued they were not heard before the re-allocation decision. The Interested Party countered that the NLC published notice on 24.12.2021 inviting comments for 30 days. The court did not rule on this because it held the entire dispute unsuitable for judicial review, the underlying legality of allocations being contested and triable only in a civil suit.
Who shall bear costs of the application
The Interested Party, as the successful party, was awarded costs
Applying the proviso to Section 27 of the Civil Procedure Act and Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, costs follow the event unless the court for good reason directs otherwise. The court found no reason to depart from the general rule since the Interested Party successfully opposed the motion.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits; disputes turning on contested questions of fact and the legality of allocations must be resolved in a civil suit where evidence can be tested by cross-examination
- Costs follow the event under the proviso to Section 27 of the Civil Procedure Act unless the court for good reason directs otherwise
Court orders
#- 1.The Applicants' notice of motion dated 12.05.2022 is dismissed in its entirety
- 2.Costs of the application for judicial review awarded to the Interested Party
- 3.The Applicants are at liberty to prosecute their pending civil suit to its logical conclusion
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act (Cap. 26) and Order 53 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission; Kanyari & 7 others (Exparte Applicants); County Government of Nyandarua (Interested Party)", Case Analysis (2023). Environment & Land Miscellaneous Case 18 of 2023 (Formerly Nyahururu ELC Misc. No. E005 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22033/eng@2023-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.