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ELCStruck OutJudicial Review Motion dated July 1, 2024· [2025] KEELC 3375 (KLR)

Republic v District Land Registrar Busia & 2 others; Sumba (Exparte Applicant) (Environment and Land Judicial Review Case E001 of 2024) [2025] KEELC 3375 (KLR)

High Court of Kenya
28 April 2025
BOBOAZ N. OLAO
539 words in judgment
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The bottom line

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Kenya's High Court struck out a land judicial review case because the applicant never attached the government decision being challenged.

What this practically means

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Executive summary

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The Ex-parte Applicant, having obtained leave, filed a Notice of Motion dated July 1, 2024 seeking judicial review orders of certiorari, prohibition and mandamus against the decision of the Land Registrar and Surveyor Busia made on 14th May 2024. However, the decision sought to be quashed was never annexed to the application, whether at the leave stage or after leave was granted. Justice Boaz N. Olao held that Order 53 Rule 7(1) of the Civil Procedure Rules mandatorily requires an applicant for certiorari to lodge a copy of the impugned decision, verified by affidavit, before the hearing of the motion, or to account satisfactorily for the failure to do so. Relying on the Court of Appeal decisions in Musa Kingori Gaita v Kenya Wildlife Service (2006 eKLR) and Samson Kerera M'ruchu v Minister for Lands and Settlement (Civil Appeal No. 21 of 1999), the Court held that compliance is a pre-condition to the certiorari application and that continued proceedings in violation of the rule are a nullity. There being nothing before the Court to justify a hearing, the Notice of Motion was declared incompetent and struck out with no orders as to costs. The ruling was dated, signed and delivered by electronic mail on 28th April 2025.

Key legal issues

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01

Failure to annex the decision sought to be quashed

Holding

The Motion is incompetent where the certiorari applicant fails to annex the decision and offers no satisfactory explanation.

Reasoning

Order 53 Rule 7(1) mandates lodging a copy of the decision sought to be quashed before hearing of the motion, verified by affidavit, or accounting for the failure to the satisfaction of the Court. The Applicant neither filed the decision at the leave stage nor after leave was granted. Citing Musa Kingori Gaita and Samson Kerera M'ruchu, the Court held the non-compliance is a pre-condition whose violation renders continued proceedings a nullity, leaving nothing to justify a hearing.

p. 2

Legal principles established

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  • Compliance with Order 53 Rule 7(1) is a mandatory pre-condition to seeking an order of certiorari; the applicant must annex the decision sought to be quashed or give a satisfactory reason for failure to do so.

Court orders

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  1. 1.The Ex-parte Applicant's Notice of Motion dated July 1, 2024 and filed on July 26, 2024 is struck out with no orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 7(1)
  • Civil Procedure RulesOrder 53 Rule 3

Cases cited (2)

  • Musa Kingori Gaita -v- Kenya Wildlife Service
    2006 eKLR
  • Samson Kerera M'ruchu -v- Minister For Lands And Settlement
    C.A. Civil Appeal No. 21 of 1999
Jurisdiction invoked
Order 53 of the Civil Procedure Rules (judicial review jurisdiction of the High Court)

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 v District Land Registrar Busia & 2 others; Sumba (Exparte Applicant) (Environment and Land Judicial Review Case E001 of 2024) [2025] KEELC 3375 (KLR)", Case Analysis (2025). Judicial Review Motion dated July 1, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3375/eng@2025-04-28

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