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ELCDismissedELC Judicial Review Application No. E002 of 2021· [2024] KEELC 1137 (KLR)

Republic v Principal Secretary, State Department of Housing and Urban Development & 6 others; Settlement Executive Committee (Interested Party); Menga & 11 others (Exparte Applicant) (Environment and Land Case Judicial Review Application E002 of 2021) [2024] KEELC 1137 (KLR)

Environment and Land Court
29 February 2024
SOS. Okong'o
4,945 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 in Kisumu dismissed residents' challenge to a Kisumu settlement land demarcation, ruling that land ownership disputes belong in an ordinary civil suit, not judicial review.

What this practically means

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Executive summary

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Twelve ex parte applicants, residents of the Shaurimoyo informal settlement in Muhoroni Sub-County, Kisumu County, obtained leave and brought a judicial review Notice of Motion seeking certiorari to quash all decisions made in demarcating, dividing and allocating land at Shaurimoyo under the Kenya Informal Settlement Improvement Project (KISIP), prohibition against further demarcation and against arrest or harm by police, and mandamus compelling a proper and transparent demarcation process. They alleged the Settlement Executive Committee and a later task force exceeded their mandates, shifted boundaries, allocated land to themselves and strangers, and that the process was marred by fraud, corruption, nepotism and lack of consultation. The Attorney General, through a replying affidavit of the Principal Secretary Charles M. Hinga, denied any irregularity, asserting the project was participatory, all grievances were resolved, affected persons were facilitated, and titles were being processed. The Interested Party filed no replying affidavit and no submissions. Justice S. Okong'o framed a single issue: whether the Applicants made a case for the judicial review orders sought. Applying the principle that judicial review concerns the decision-making process rather than merits, the court found no specific ultra vires decision was identified, the Applicants were involved through representatives, and the true dispute was over land ownership involving allegations of fraud and contested facts requiring viva voce evidence, which judicial review cannot accommodate. The court held the Applicants should have filed an ordinary civil suit and dismissed the application, ordering each party to bear its own costs.

Key legal issues

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Whether the Applicants established a case for the grant of orders of certiorari, prohibition and mandamus

Holding

The application was dismissed; the Applicants failed to identify any specific ultra vires decision and their dispute was essentially one of land ownership unsuitable for judicial review.

Reasoning

The court observed that KISIP involved decisions by various actors at various stages, but the Applicants did not point to any specific decision that was ultra vires, arbitrary or unreasonable. The evidence showed the Applicants were engaged and involved through representatives. The real dispute was over ownership and allocation of land, including allegations of fraud and corruption, which require viva voce evidence and cannot be resolved on contested affidavits in judicial review proceedings. The proper forum was an ordinary civil suit.

p. 9

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • Land ownership disputes requiring viva voce evidence cannot be determined in judicial review proceedings

Court orders

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  1. 1.The Notice of Motion dated 23rd February 2021 is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 (implied by leave regime for judicial review)

Cases cited (6)

  • Municipal Council of Mombasa v Republic & another
    [2002] eKLR
  • OJSC Power Machines Limited, Trans Century Limited, and Civicon Limited (Consortium) v Public Procurement Administrative Review Board Kenya & 2 others
    NRB CA 28 of 2016, [2017] eKLR
  • Kenya National Examination Council v Republic, Ex-parte Geofrey Gathenji Njoroge & 9 others
    [1997] eKLR
  • Republic v Cabinet Secretary, Ministry of Interior & Co-ordination of National Government & 2 others Ex-Parte Kisimani Holdings Ltd
    [2015] eKLR
  • Sanghani Investment Limited v Officer in Charge Nairobi Remand and Allocation Prison
    [2007] 1 EA 354
  • Republic v National Land Commission Ex-Parte Ephrahim Muriuki Wilson & others
    [2018] eKLR
Jurisdiction invoked
Fair Administrative Action and the High Court's supervisory judicial review jurisdiction pursuant to leave granted on 26th January 2021 under Order 53 of the Civil Procedure Rules

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 Principal Secretary, State Department of Housing and Urban Development & 6 others; Settlement Executive Committee (Interested Party); Menga & 11 others (Exparte Applicant) (Environment and Land Case Judicial Review Application E002 of 2021) [2024] KEELC 1137 (KLR)", Case Analysis (2024). ELC Judicial Review Application No. E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1137/eng@2024-02-29

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