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ELCDismissedMisc Application No 130 of 2017· [2025] KEELC 3212 (KLR)

Republic of Kenya & another v Land Registrar, Kajiado North & another (Environment and Land Judicial Review Miscellaneous Application 130 of 2017) [2025] KEELC 3212 (KLR)

Environment and Land Court
3 April 2025
MMM.D. Mwangi
1,216 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kajiado confirmed you cannot use a review application to challenge a judicial review ruling—your remedy is an appeal.

What this practically means

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Executive summary

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The 1st interested party, Irene Moraa Onsumu, moved the court by notice of motion dated 28th May 2024 seeking review of the court's orders of 30th October 2023, contending that the court erred in adopting a Land Registrar's report dated 30th September 2020 without its production and without affording the parties an opportunity to cross-examine the registrar; she also sought summons to the Land Registrar, Kajiado North. The ex parte applicant (through his personal representative, James Karanja Gathesa) opposed, arguing that an allegedly erroneous ruling is a ground of appeal, not review, and that the application was filed over seven months after the ruling without explanation, and was an abuse of process. The court, on its own motion, identified the threshold issue of whether judicial review proceedings are subject to the Civil Procedure Act and Rules, since the review application was brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 45 and 51. Relying on Anaclet Musau, Republic v Amagoro Land Disputes Tribunal, Cortec Mining, Benard Muia Kiala and Welamondi, the court held that judicial review is a special, sui generis jurisdiction governed by Sections 8 and 9 of the Law Reform Act and Order 53, into which Civil Procedure Act provisions cannot be imported. The application was therefore incompetent. Proceeding nonetheless on the merits as good practice, the court held, per Francis Origo v Mungala, that an erroneous conclusion of law or evidence is a ground of appeal, not review. The application was dismissed with costs to the ex parte applicant.

Key legal issues

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01

Whether review under Section 80 CPA/Order 45 applies to judicial review proceedings

Holding

It does not; judicial review is a special jurisdiction governed by Sections 8 and 9 of the Law Reform Act with Order 53 as the procedural law, so an Order 45 review application is incompetent

Reasoning

The court framed this as the dispositive issue, raised suo motu. Relying on Anaclet Musau on jurisdiction being raised suo motu, and on Republic v Amagoro Land Disputes Tribunal, Cortec Mining, Benard Muia Kiala and Welamondi, it held judicial review is sui generis and Civil Procedure Act provisions cannot be imported. Consequently an application for review brought under Sections 1A, 1B, 3A, Order 45 and 51 was incompetent and had to fail.

p. 3
02

Whether the ruling adopting the Land Registrar's report without cross-examination contained an error apparent on the face of the record

Holding

No; even assuming competence, the complaint that the court wrongly adopted the report amounts to an erroneous conclusion, which is a ground of appeal, not review

Reasoning

The interested party argued the court erred in adopting the Land Registrar's report without production and cross-examination. The court agreed with Francis Origo & another v Jacob Kumali Mungala that an erroneous conclusion of law or evidence is not a ground for review but may be a good ground of appeal; having opted for review rather than appeal, the applicant was proceeding in the wrong direction.

p. 4

Legal principles established

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  • Where a special jurisdiction or procedure is conferred by another law, the Civil Procedure Act and its provisions (including Order 45 review) are inapplicable; judicial review proceedings are sui generis
  • A jurisdictional issue is fundamental and may be raised by the court suo motu
  • An erroneous conclusion of law or evidence is a ground of appeal, not a ground for review under Order 45

Court orders

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  1. 1.Dismissal of the 1st interested party's notice of motion dated 28th May 2024
  2. 2.Costs of the application to the ex parte applicant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 8, 9, 80
  • Civil Procedure RulesOrders 45, 51, 53, Order 1 Rule 8
  • Law Reform ActSections 8 and 9

Cases cited (6)

  • Anaclet Musau –vs- Attorney General and 2 others
    (2020) eKLR
  • Republic –vs- Chairman Amagoro Land Disputes Tribunal & another ex-parte Paul Mafwabi Wanyama
    (2014) eKLR
  • Cortec Mining (K) Limited
  • Benard Muia Kiala –vs- Machakos County Government and another
    (2017) eKLR
  • Jotham Mulati Welamondi –vs- The Electoral Commission of Kenya
    (Bungoma High Court Miscellaneous Application No. 81 of 2002) (2002) KLR 486
  • Francis Origo & another –vs- Jacob Kumali Mungala
    (2005) eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules (judicial review)

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, "Republic of Kenya & another v Land Registrar, Kajiado North & another (Environment and Land Judicial Review Miscellaneous Application 130 of 2017) [2025] KEELC 3212 (KLR)", Case Analysis (2025). Misc Application No 130 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3212/eng@2025-04-03

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