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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit offends Section 9(2) and (3) of the Law Reform Act
The objection fails because Section 9 only limits time for certiorari, and no certiorari was sought.
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.
Whether the suit is time barred under Section 7 of the Limitation of Actions Act
Section 7 does not apply because the matter is a judicial review application, not an action to recover land.
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.
Whether the Tribunal findings and the decree in Land Dispute No. 6 of 2008 could be set aside and mandamus issue on judicial review
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.
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.
Legal principles established
#- 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
#- 1.The 1st respondent's preliminary objection dated 29th September 2023 is dismissed
- 2.The Ex-parte applicant's Notice of Motion dated 20th August 2023 is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.