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ELCDismissedELC Judicial Review E010 of 2023· [2024] KEELC 3244 (KLR)

Riungu v Chief Land Registrar & 4 others (Environment and Land Judicial Review Case E010 of 2023) [2024] KEELC 3244 (KLR)

Environment and Land Court of Kenya
15 February 2024
5,476 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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The court dismissed a landowner's attempt to use judicial review to prove land ownership, ruling the matter was already decided and must be litigated through an ordinary suit.

What this practically means

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Executive summary

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By a Notice of Motion dated 19th June 2023, filed with leave of the court, Ashford Gerrald Riungu sought, by way of judicial review, a declaratory order that he is the bona fide and absolute proprietor of plot Meru Municipality/Block T487 and an order of mandamus compelling the Chief Land Registrar to issue and deliver a certificate of lease for the parcel, plus costs. He traced his title to a 1998 allocation by the defunct Municipal Council of Meru and a 1999 letter of allotment by the Commissioner of Lands, averring compliance with all conditions, payment of rates and ground rent for 25 years, and that the parcel was not listed in the Ndungu Report. The 1st, 3rd and 5th respondents, through the Attorney General, argued the application sought a merit review of ownership outside judicial review, and that an allotment letter alone confers no interest in land. The 4th respondent (County Government of Meru) contended the suit was res judicata, that ownership was litigated or should have been litigated in Meru Judicial Review No. 95 of 2010 (Cherono J, 8 February 2018) in which certiorari and prohibition issued but mandamus was declined, and that the land is irregularly allocated public land. The court framed three issues: res judicata, entitlement to the orders, and costs. Relying on Section 7 of the Civil Procedure Act and Section 28 of the ELC Act, and authorities including Maina Kiai and John Florence Maritime, Judge C. Yano held the suit res judicata - the applicant should have appealed or sought review. In the alternative, contested ownership cannot be decided in judicial review on affidavit evidence but requires an ordinary suit with oral evidence. The Notice of Motion was dismissed with costs to the respondents.

Key legal issues

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01

Res judicata

Holding

The suit is res judicata; the order of mandamus now sought was the same relief declined in Meru High Court Judicial Review No. 95 of 2010 (Cherono J, 8 February 2018), and the applicant's remedy was appeal or review

Reasoning

The court found that there was prior litigation over the same plot between the applicant and the same public bodies, in which certiorari and prohibition were granted but mandamus compelling issuance of a certificate of lease was declined. Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act bar a fresh suit; the proper course was review under Section 80 CPA and Order 45 Rule 1 or an appeal.

p. 9
02

Whether the court, sitting as a judicial review court, can declare the applicant owner of the suit land

Holding

No - the ownership issue is highly contested and requires merit review on oral evidence in an ordinary suit, outside the judicial review remit

Reasoning

The applicant claims to be bona fide absolute proprietor while the 4th respondent contends the parcel is public land irregularly allocated. Determining ownership would entail a merit review. Judicial review rests on affidavit evidence, unsuited to resolving contested documentary claims of ownership; such disputes belong to an ordinary suit.

p. 9

Legal principles established

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  • A suit whose reliefs were determined, or ought to have been raised, in a former suit between the same parties is barred by res judicata; the remedy is appeal or review, not a fresh suit
  • Contested ownership of land cannot be determined in judicial review proceedings on affidavit evidence; it must be litigated by ordinary suit with oral evidence

Court orders

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  1. 1.The Notice of Motion dated 14th June, 2023 (filed 19th June 2023) is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Local Government Act (Cap 265, repealed)Sections 177, 177(1)(f) and (g)
  • Land Registration ActSection 30(1)
  • Constitution of Kenya, 2010Articles 4, 23(3)(a-f), 35, 40, 47, 65, 66, 159(2)(d)
  • Fair Administrative Actions ActSection 4
  • Land ActSections 7, 7(a), 9
  • Government Lands Act (repealed)Sections 9, 10, 11
  • Civil Procedure ActSections 7, 80
  • Civil Procedure RulesOrder 53; Order 45 Rule 1
  • Environment and Land Court ActSection 28
  • Law Reform ActSections 8, 9
  • Physical Planning Act (Cap 286)Section 29
  • County Government Act
  • National Land Commission Act
  • Urban Areas and Cities Act
  • Judiature Act
  • National Land Policy (Sessional Paper No. 3)

Cases cited (19)

  • CCK Versus Royal Media Limited
    [2014] eKLR
  • Republic Versus Director of Public Prosecution & Another ex-parte Chamnial Vragcal Kimani (and Meru High Court Misc. Civil Suit No. 69 of 2010, Ex-parte Nelly G. Solomon)
  • Adan Abdiraham Hassan & 2 others versus Registrar of Titles Ministry of Lands & 2 others
    [2013] eKLR
  • Omar Hamed Versus Swaleh Mohammed and 6 others
    Malindi Environment & Land Court Case No. 41B of 2012
  • Republic Versus National Transport & Safety Authority & 10 Others ex-parte James Maina Mugo
    [2015] eKLR
  • Republic Versus Jomo Kenyatta University of Agriculture & Technology ex-parte Elijah Kamau Mwangi
    [2021] eKLR
  • Torino Enterprises Limited Versus The Hon. Attorney General
    SC Petition No. 5 (E006) of 2022
  • Ali Mohammed Dagane ... Versus Hakar Abshir & 3 Others
    [2021] eKLR
  • Praxidies Namosi Saisi & Others Versus DPP & Others
    Petition No. 39 of 2019
  • SGS Kenya Limited Versus Energy Regulatory Commission and 2 Others
    SC Petition No. 2 of 2019 [2020] eKLR
  • Supreme Court Petition No. 6 (E007) of 2022 Consolidated with Petition No. 4 (E005) & 8 (E010) of 2020
  • Republic Versus the Chief Land Registrar ex-parte Dr. Josephine Wanjiru Kamau
    Judicial Review No. 2 of 2022
  • Independent Electoral and Boundaries Commission Versus Maina Kiai & 5 others
    [2017] eKLR
  • Attorney General & Another Versus ET
    [2012] eKLR
  • Omondi Versus NBK & Others
    [2001] EA 177
  • Herdson Versus Herdson
    (1843) 67 ER 313
  • John Florence Maritime Services Limited & Another Versus Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Dr. Joseph N. K. Arap Ng'ok Versus Justice Moijo Ole Keiyua & 4 Others
    Court of Appeal No. 60 of 1997
  • Mbau Saw Mills Ltd Versus Attorney General for and on behalf of the Commissioner of Lands & 2 others
    [2014] eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules (judicial review jurisdiction of the Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Riungu v Chief Land Registrar & 4 others (Environment and Land Judicial Review Case E010 of 2023) [2024] KEELC 3244 (KLR)", Case Analysis (2024). ELC Judicial Review E010 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3244/eng@2024-02-15

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