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ELCDismissedJudicial Review (E&L) - Notice of Motion dated 12.2.2024 (re Minister's Appeal No. 117/2020)· [2024] KEELC 4774 (KLR)

Kariuki v Deputy County Commissioner Buuri East Sub-County & another; M'munoru (Interested Party) (Environment and Land Judicial Review Case E007 of 2023) [2024] KEELC 4774 (KLR)

Environment and Land Court
12 June 2024
1,860 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The exparte applicant, Janet Karambu Kariuki, moved the court by notice of motion dated 12.2.2024 seeking certiorari to quash the Minister's decision of 5.5.2022 in Appeal No. 117/2020 concerning Parcel No. 633 Ruiri/Rwarera Adjudication Section. She relied on a 1976 sale agreement and her late husband's recorded ownership and occupation, contending the Minister acted unfairly and unlawfully by ignoring relevant material and rewarding an interested party she alleged had trespassed. The interested party opposed through a preliminary objection and replying affidavit, maintaining his late father was allocated the parcel in 1972, occupied 4 acres with permanent developments, and that the Minister validly awarded him that land; he also contended the application offended Order 53 rules 2 and 3 and was time-barred. The respondents did not respond. The court held that certiorari must be filed within six months of the decision under Order 53 and Section 9(3) of the Law Reform Act, and that the period cannot be extended, applying Chabari v DLASO, Wilson Osolo and the Amagoro Tribunal case. On the merits, applying Pastoli, Municipal Council of Mombasa v Umoja Consultants and Dande, the court held that judicial review concerns process, not merits, and the applicant failed to prove unfairness or unlawfulness: both parties were heard, a locus in quo visit was conducted, and the applicant's own statements showed the entry was consensual. The notice of motion was dismissed with costs to the interested party.

Key legal issues

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01

Limitation for judicial review by certiorari

Holding

The application was time-barred; the six-month period under Section 9(3) of the Law Reform Act and Order 53 had expired before the exparte applicant approached the court, and the period cannot be extended

Reasoning

The court applied Chabari v DLASO, which cited Wilson Osolo v John Odhiambo Achola and Republic v Chairman Amagoro Land Dispute Tribunal exparte Mafwabi Wanyama, holding that time under Section 9 of the Law Reform Act cannot be extended under Order 49 or Section 9(3), and that rules cannot override a statutory provision; the delay is not curable under Article 159(2)(d).

p. 3
02

Merits - fairness and lawfulness of the Minister's decision-making process

Holding

The Minister's process was fair and lawful: both parties were heard, exhibits were availed, a locus in quo visit was conducted, and all relevant material was considered; the applicant failed to prove unfairness or unlawfulness

Reasoning

The court noted the applicant's challenge attacked the merits (ignoring the 1976 sale agreement and occupation) rather than the process. Judicial review concerns jurisdiction, fair hearing and relevant considerations, not merits. The proceedings showed each party was heard, and the applicant's own admission showed the interested party's entry was consensual. No irrationality or failure to consider relevant matters was demonstrated.

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03

Invocation of Article 47 of the Constitution at notice of motion stage

Holding

The exparte applicant had not invoked Article 47 in the original chamber summons; raising it in the notice of motion was challenged as illegal, and where traditional judicial review is used without invoking the Constitution, no merit-based review lies

Reasoning

Counsel for the interested party submitted that Article 47 had not been invoked in the original exparte chamber summons and introducing it in the notice of motion was illegal; the applicant's counsel confirmed the Constitution had not been invoked in the original documents. The court cited Dande v Inspector General National Police Service that where a party uses traditional judicial review without invoking the Constitution, the court shall not undertake a merit-based review.

p. 3

Legal principles established

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  • Certiorari proceedings must be instituted within six months of the decision; time under Section 9(3) of the Law Reform Act cannot be extended, and delay is not curable under Article 159(2)(d) of the Constitution
  • Judicial review is concerned with the decision-making process, not the merits; a party alleging unfairness or unlawfulness in the process must plead and prove it

Court orders

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  1. 1.The notice of motion dated 12.2.2024 is dismissed
  2. 2.Costs to the interested party

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule (2) & (3)
  • Law Reform ActSection 9(3)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (11)

  • Chabari v DLASO Meru South Maara District & others
    E & L JR E001 of 2023 (2024) KEELC 11288 (KLR)
  • Wilson Osolo v John Odhiambo Achola & another
    (1996) eKLR
  • Republic v Chairman Amagoro Land Disptue Tribunal and another exparte, Mafwabi Wanyama
    (2014) eKLR
  • Republic v Land Registrar Busia & others Nyaboti exparte
    EL & JR E003 of 2023 (2024) KEELC 1319 (KLR)
  • Pastoli v Kabale District Local Government Council & others
    (2008) 3 EA 300
  • Municipal Council of Mombasa v Umoja Consultants Ltd
    (2002) eKLR
  • Republic v Deputy Count Commissioner Maknein and others; Matolo exparte
    ELC JR E021 of 2022 (2024) KEELC 1371 (KLR)
  • Republic v KRA exparte Yaya Towers Ltd
    (2018) eKLR
  • Dande and Others v Inspector General national police Service & 5 Others
    2023 (KESCO 40) KLR
  • Lucy Mirigo & 550 others v Minister for Lands and other
    (2014) eKLR
  • Commissioner of Land v Kunste Hotel Ltd
    NRB C.A No. 234 of 1995
Jurisdiction invoked
Order 53 of the Civil Procedure Rules and Section 9(3) of the Law Reform Act (judicial review - certiorari)

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 Deputy County Commissioner Buuri East Sub-County & another; M'munoru (Interested Party) (Environment and Land Judicial Review Case E007 of 2023) [2024] KEELC 4774 (KLR)", Case Analysis (2024). Judicial Review (E&L) - Notice of Motion dated 12.2.2024 (re Minister's Appeal No. 117/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4774/eng@2024-06-12

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