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ELCStruck OutJudicial Review application (Notice of Motion dated 9th March 2022)· [2024] KEELC 4020 (KLR)

Kariuki v Registrar of Titles, Nairobi & 5 others; Parkion & 6 others (Interested Parties) (Environment and Land Judicial Review Case E003 of 2022) [2024] KEELC 4020 (KLR)

Environment and Land Court
30 April 2024
4,453 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a judicial review application over land deed plans because the same dispute was already pending in earlier, separate court cases.

What this practically means

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Executive summary

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The Exparte Applicant, Hezekiah Mwangi Kariuki, moved the Court by Notice of Motion dated 9th March 2022 seeking judicial review orders of certiorari to quash the 6th Respondent's decision of 21st February 2022 cancelling deed plans for land parcels L.R Nos. 31666-31673, 31674-681 and 31577-31596, mandamus to restore the deed plans, and prohibition against future interference. He argued the cancellation rendered his titles non-existent without a hearing, contrary to Article 47 and the Fair Administrative Action Act. The Respondents and Interested Parties opposed, contending the parcels had been irregularly sub-divided from railway quarry land and adjoining parcels without Kenya Railways' consent, that notice of intended cancellation was issued and no responses received, and that the Director of Survey acted under Section 33 of the Survey Act. The 5th and 6th Interested Parties further objected that the matter was sub judice to Kajiado ELC No. 776 of 2017 and Machakos ELC Petition No. E005 of 2022, both filed earlier, and that the Applicant had not disclosed those suits. The Court framed two issues: sub judice and whether the Applicant made out a case for judicial review. Applying Section 6 of the Civil Procedure Act and the Supreme Court's articulation of the sub judice doctrine, it found the pending suits raised the same issues over the same parcels and that proceeding risked conflicting orders. It struck out the entire application and ordered each party to bear their own costs.

Key legal issues

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01

Sub judice

Holding

The application is sub judice and was struck out

Reasoning

The Court perused the pleadings in Kajiado ELC No. 776 of 2017 and Machakos ELC Petition No. E005 of 2022, both filed earlier, and found they relate to the same suit parcels and seek similar orders. The Applicant did not respond to the sub judice objection and did not disclose the earlier suits in his pleadings. Proceeding would risk coordinate courts granting conflicting orders over the same property.

p. 8
02

Non-disclosure and abuse of process

Holding

The Applicant's non-disclosure of the earlier suits weighed against him

Reasoning

The Court noted the Applicant did not disclose the existence of the earlier pending suits in his pleadings, a fact raised by the 5th and 6th Interested Parties and left unrebutted, reinforcing the decision to strike out the application rather than determine the fairness of the cancellation.

p. 8

Legal principles established

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  • A later suit between the same parties on the same subject matter pending before courts of competent jurisdiction ought to be stayed or struck out under the sub judice rule
  • The purpose of the sub judice rule is to avoid multiplicity of suits and conflicting decisions by courts of concurrent jurisdiction

Court orders

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  1. 1.The entire Notice of Motion dated 9th March 2022 is struck out.
  2. 2.Each party shall bear their own costs of the proceedings.

Authorities

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Legislation

  • Constitution of Kenya 2010Article 47
  • Fair Administrative Action ActSections 4(11), (2) and (3)
  • Civil Procedure ActSection 6
  • Survey ActSection 33

Cases cited (8)

  • Republic -v- the Honourable Chief Justice of Kenya and others Exparte Moijo Mataiya Ole Keiwa
    Nairobi HVMCA No. 1298 of 2004
  • Republic -v- Truth Justice & Reconciliation Communication & Another Exparte Beth Wambui Mugo
    (2016) eKLR
  • Republic -v- Registrar of Titles in Mombasa & 2 others EmFill Ltd
    (2012) eKLR
  • Republic -v- Public Procurement Administrative Review Board, Shenz Instrument Co. Ltd & Another, Exparte Kenya Power & Lighting Company Ltd
    (2019) eKLR
  • Onyango Oloo -v- A.G
    (1986-1989) E.A 456
  • Satya Bhama Ghadhi -v- the Director of Public Prosecutor & Others
    (2018) eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR
  • David Ndii & others versus Attorney General & Others
    2021 eKLR
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court; fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act; Section 6 of the Civil Procedure Act (sub judice)

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, "Kariuki v Registrar of Titles, Nairobi & 5 others; Parkion & 6 others (Interested Parties) (Environment and Land Judicial Review Case E003 of 2022) [2024] KEELC 4020 (KLR)", Case Analysis (2024). Judicial Review application (Notice of Motion dated 9th March 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4020/eng@2024-04-30

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