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ELCOtherJudicial review leave application dated 22nd May 2023· [2024] KEELC 6970 (KLR)
Republic v James Finlay (Kenya) Ltd & another; National Land Commission & 4 others (Interested Parties); Cheruiyot & another (Ex parte Applicants) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 6970 (KLR)
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·~12 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court refused to strike out a judicial review application, ruling jurisdiction cannot be decided from Grounds of Opposition alone.
What this practically means
#Executive summary
#This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) deals with the 1st Respondent's Grounds of Opposition dated February 12, 2024, filed in response to the Ex parte Applicants' Chamber Summons dated 22nd May 2023 seeking leave to commence judicial review proceedings. The Applicants sought leave for orders of certiorari, mandamus and prohibition directed at the 1st and 2nd Respondents and three Interested Parties concerning the sale/disposal of the 1st Respondent's shares in tea estates in Kericho to the 2nd Interested Party without public participation and approval by the County Assembly of Kericho, plus leave to operate as a stay. The 1st Respondent raised sixteen grounds contending, among others, that no public land was identified, that judicial review does not lie against a private limited liability company or commercial transactions between private entities, that the National Land Commission and County Assembly were improperly listed as Interested Parties against whom no orders could issue, and that prohibition orders were overtaken by the completed transaction. The court directed that the Grounds of Opposition be dealt with first, as they apparently attacked jurisdiction. Applying authorities holding that Grounds of Opposition are general averments, the court found that the 1st Respondent's grounds contained questions of fact and raised the jurisdictional question only by inference. It held that jurisdiction cannot be determined in isolation from the substantive application, particularly where only one party had responded. The court ordered the application dated May 22, 2023 to proceed to hearing by written submissions, with parties to file responses within 30 days and a mention on December 3, 2024. Costs were ordered to abide the outcome of the suit. Neither party's application for striking out was granted at this interlocutory stage.
Key legal issues
#01
Whether the 1st Respondent's Grounds of Opposition, which attack the court's jurisdiction, could be determined in the first instance as a preliminary objection
Holding
The court declined to determine jurisdiction on the Grounds of Opposition alone; they contain questions of fact and raise jurisdiction only by inference, and the leave application should proceed to hearing with jurisdiction raised expressly in responses
Reasoning
The court relied on authorities that Grounds of Opposition are general averments addressing questions of law. Upon consideration it found the 1st Respondent's Grounds contained questions of fact (e.g. grounds (e), (f) and (k)) and did not expressly raise jurisdiction. Since a replying affidavit had already been filed and only one party had responded, the jurisdictional question should be addressed within the full hearing of the leave application rather than disposed of in isolation.
p. 7
Legal principles established
#- Grounds of Opposition address issues of law and are deemed general averments; where they contain questions of fact and jurisdiction is only inferred, jurisdiction cannot be determined in isolation from the substantive application
Court orders
#- 1.The application dated May 22, 2023 proceeds to hearing
- 2.Parties minded to raise the question of jurisdiction are at liberty to expressly do so in their responses
- 3.The application dated May 22, 2023 shall be heard by way of written submissions
- 4.All parties shall file their responses and submissions within 30 days of the date of the ruling
- 5.The matter to be mentioned on December 3, 2024 for submissions
- 6.Costs shall abide the outcome of the suit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya and Section 13(2) of the Environment and Land Court Act; Article 23(3)(f) of the Constitution, Order 53 Rules 1 and 2 of the Civil Procedure Rules, Section 7(1) & (2) of the Fair Administrative Action Act 2015 and Sections 8 & 9 of the Law Reform Act (as invoked in the application for leave)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v James Finlay (Kenya) Ltd & another; National Land Commission & 4 others (Interested Parties); Cheruiyot & another (Ex parte Applicants) (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 6970 (KLR)", Case Analysis (2024). Judicial review leave application dated 22nd May 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6970/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.