Kere & 2 others (Suing as the Administrators of the Estate of John Abongo Kere - Deceased) v John Locia, The Officer Commanding Station, Pap Onditi Police Station (Environment and Land Case Judicial Review Application E008 of 2024) [2024] KEELC 5594 (KLR)
The bottom line
#A Kisumu court refused to let landowners use judicial review to fight a blocked access dispute, telling them trespass claims belong in a civil suit.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants established an arguable case for leave to apply for judicial review (prohibition)
The application was dismissed; the court found no prima facie case for leave
The court held that the acts complained of, installing a gate and blocking access to land, would amount to trespass to land rather than abuse of statutory power. The applicants had not shown the respondent acted in his capacity as a police officer, and an underlying ownership dispute with third parties was evident. The proper forum was a civil suit seeking injunction and damages, not judicial review.
Whether prohibition was the appropriate remedy against the respondent
Prohibition was inapplicable because the respondent was not exercising statutory or judicial power when he allegedly blocked access
Applying the Gathenji definition, prohibition lies against inferior tribunals or bodies acting in excess of jurisdiction. The court found the respondent's alleged conduct was personal, not statutory, noting he had been sued in his personal name. Hence no statutory power was exceeded and the judicial review remedy was misconceived.
Legal principles established
#- The test for leave to apply for judicial review is whether, without examining the matter in depth, there is an arguable case that the reliefs might be granted at the substantive hearing
- Judicial review is not suited to resolving land disputes; a trespass claim attracts civil remedies of injunction and damages, not prerogative orders
- A judicial officer exercising statutory police powers under Section 24 of the National Police Service Act could not properly install a gate blocking access to private land
Court orders
#- 1.The applicants' Chamber Summons application dated 22nd July 2024 is dismissed with no order as to costs
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court/Environment and Land Court under Order 53 of the Civil Procedure Rules (leave stage)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kere & 2 others (Suing as the Administrators of the Estate of John Abongo Kere - Deceased) v John Locia, The Officer Commanding Station, Pap Onditi Police Station (Environment and Land Case Judicial Review Application E008 of 2024) [2024] KEELC 5594 (KLR)", Case Analysis (2024). Judicial Review Miscellaneous Application E022 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5594/eng@2024-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.