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ELCDismissedJudicial Review Miscellaneous Application (Amended Notice of Motion dated 20th August 2023)· [2024] KEELC 853 (KLR)

Republic & another v Wanjohi (Sued as the Administrator of the Estate of the Late John Wanjohi Gakunya) & another; Thuo (Suing on Behalf of Samuel P.G Thuo) (Exparte Applicant) (Environment and Land Judicial Review Case E2 of 2023) [2024] KEELC 853 (KLR)

High Court of Kenya
21 February 2024
3,037 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed judicial review cannot fix land ownership disputes; you must challenge the underlying decision through the correct legal route.

What this practically means

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Executive summary

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The Ex-parte applicant, Samuel P.G Thuo, moved the Court by amended Notice of Motion dated 20th August 2023 seeking an order of mandamus compelling the Nakuru Chief Land Registrar to rectify the register for land parcel Bahati/Bahati/Block 1/1392 by cancelling the title issued to John Wanjohi Gakunya, a declaration that the title deed is void, and an order setting aside the findings of the Bahati Land Dispute Tribunal and their adoption in Land Dispute No. 6 of 2008. The 1st respondent filed a preliminary objection on grounds of limitation under Section 7 of the Limitation of Actions Act and Section 9(2) and (3) of the Law Reform Act, and a replying affidavit alleging laches and misjoinder of remedies. The court first dismissed the preliminary objection, holding that Section 9 of the Law Reform Act only limits time for certiorari (which was not sought) and that Section 7 of the Limitation of Actions Act applies to actions to recover land, not judicial review applications. On the merits, however, the court held that a court sitting on judicial review is confined to the process by which a decision was reached and cannot determine ownership, set aside a decree, or order cancellation and re-registration of title. Setting aside or review of a decree lies under Section 80 of the Civil Procedure Act and Order 45 Rule 1; dissatisfaction with a Tribunal award lay in the statutory appeal chain which the applicant never pursued. Quashing orders were neither sought nor would they have been within time. The Notice of Motion was dismissed with costs.

Key legal issues

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01

Whether the suit offends Section 9(2) and (3) of the Law Reform Act

Holding

The objection fails because Section 9 only limits time for certiorari, and no certiorari was sought.

Reasoning

The court adopted the holding in Joseph Muriithi Nyaga v Embu County Government that it is the rules made under Section 9(1) which may discretionally prescribe time limits for mandamus. Section 9 itself only limits time where certiorari is sought. Since the applicant did not seek certiorari, the six-month rule in Section 9(3) was not engaged, and ground 2 of the preliminary objection failed.

p. 5
02

Whether the suit is time barred under Section 7 of the Limitation of Actions Act

Holding

Section 7 does not apply because the matter is a judicial review application, not an action to recover land.

Reasoning

The court held that the present matter is not an action for recovery of land but a judicial review application seeking, among other orders, mandamus. The twelve-year limitation period in Section 7 of the Limitation of Actions Act applies only to actions to recover land, and therefore the preliminary objection on limitation lacked merit and was dismissed.

p. 5
03

Whether the Tribunal findings and the decree in Land Dispute No. 6 of 2008 could be set aside and mandamus issue on judicial review

Holding

No. Judicial review jurisdiction is limited to process; setting aside a decree lies under Section 80 CPA, and ownership questions cannot be determined on review.

Reasoning

Relying on Ransa Company Ltd and Five Forty Aviation, the court held that judicial review is sui generis and restrictive, dealing with process not merits. The applicant sought substantive relief - cancellation of title and re-registration - which a review court cannot grant. Quashing orders were never sought and would in any event be out of time. Dissatisfaction with a Tribunal award lay in appeals to the Provincial Appeals Committee, the Minister or the High Court, none of which was pursued.

p. 6

Legal principles established

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  • A court sitting on judicial review is dispossessed of inherent jurisdiction and must operate within Sections 8 and 9 of the Law Reform Act and Order 53; it examines process, not merits.
  • Section 9 of the Law Reform Act limits time only for certiorari; mandamus applications are governed by rules made under Section 9(1).
  • Certiorari to quash a judgment, order or decree must be sought within six months of the decision.

Court orders

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  1. 1.The 1st respondent's preliminary objection dated 29th September 2023 is dismissed
  2. 2.The Ex-parte applicant's Notice of Motion dated 20th August 2023 is dismissed with costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Law Reform Act (Cap 26)Sections 8, 9(2), 9(3)
  • Civil Procedure RulesOrder 53 Rule 2; Order 45 Rule 1; Order 21[1]
  • Civil Procedure ActSection 80
  • Constitution of KenyaArticle 40
  • Land Registration ActSection 26
  • Land Disputes Tribunal Act (repealed)adoption of Tribunal awards

Cases cited (14)

  • Eliud Njoroge Gachiri v Stephen Kamau Nganga
    [2018] eKLR
  • County Government of Laikipia v James Kimani Mburu & 2 others
    [2019] eKLR
  • Samuel Odhiambo Oludhe & 2 Others v Jubilee Jumbo Hardware Limited & another
    [2018] eKLR
  • Chemei Investments Limited v The Attorney General & Others
    Nairobi Petition No. 94 of 2005 (unreported)
  • Arthi Highway Developers Limited v West End Butchery Limited and others
    [2015] eKLR
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others
    [2015] eKLR
  • Republic v Eldoret Water & Sanitation Company Limited Ex parte Booker Onyango & 2 Others
    [2007] eKLR
  • Avter Singh Bhamra & anor v Oriental Commercial Bank
    HCC No. 53 of 2004
  • Mehta v Shah
    [1965] EA 321
  • Gathoni v Co-operative Creameries Ltd
    [1982] KLR 104
  • Joseph Muriithi Nyaga v Embu County Government
    [2021] eKLR
  • Republic v Jubilee Party & another Ex parte John Kieru Wambui & another
    [2021] eKLR
  • Ransa Company Ltd v Manca Francesco & 2 others
    [2015] eKLR
  • Five Forty Aviation Limited v Kenya Revenue Authority & 3 others
    [2017] eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules - 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, "Republic & another v Wanjohi (Sued as the Administrator of the Estate of the Late John Wanjohi Gakunya) & another; Thuo (Suing on Behalf of Samuel P.G Thuo) (Exparte Applicant) (Environment and Land Judicial Review Case E2 of 2023) [2024] KEELC 853 (KLR)", Case Analysis (2024). Judicial Review Miscellaneous Application (Amended Notice of Motion dated 20th August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/853/eng@2024-02-21

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