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ELCDismissedJudicial Review application arising from Notice of Motion dated April 12, 2025· [2025] KEELC 5932 (KLR)

Republic v Principal Magistrate, Malindi; Belec Veronique t/a Caribou Kijani Real Estate Investment Ltd (Interested Party); Tamu Rafiki Real Estate Limited (Ex parte Applicant) (Environment and Land Miscellaneous Application E001 of 2025) [2025] KEELC 5932 (KLR)

Environment and Land Court
31 July 2025
EME. K. Makori
3,039 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 Ex-parte Applicant, a party to Malindi CMCC E001 of 2025 concerning an allegedly flawed sale of a villa in Watamu, moved the court by Notice of Motion dated April 12, 2025 seeking to set aside orders of March 25, 2025, by which the court had marked as spent its chamber summons of February 19, 2025 seeking leave to apply for certiorari against orders issued by Hon. Makau (Principal Magistrate) between January 10 and February 10, 2025. Counsel explained his non-attendance by reason of handling several matters on one device and his partner's absence in Kwale. The Respondent and Interested Party opposed, arguing the court was functus officio, no sufficient cause for absence was shown, and the matter was academic because the magistrate had on March 17, 2025 delivered a ruling and recused herself, referring parties to the Chief Magistrate. The Interested Party also maintained the magistrate had pecuniary jurisdiction over a liquidated claim of Kshs. 7,053,726.51, and that the proper remedy against the March 17 ruling was appeal. Applying Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules and the principles in Esther Wamaitha Njihia v Safaricom Limited, the court held that counsel's unsupported explanation did not amount to sufficient cause, and that leave to pursue judicial review would be academic since the magistrate had recused herself. The application was dismissed with costs to the Respondent and Interested Party.

Key legal issues

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01

Whether sufficient cause existed to set aside the ex parte orders of 25 March 2025

Holding

No sufficient cause was established; counsel's explanation was unsupported by affidavit, diary or adjournment request

Reasoning

The court applied Order 12 Rule 7 and Order 51 Rule 15 of the Civil Procedure Rules and the discretion principles in Esther Wamaitha Njihia, holding that discretion must avoid injustice from inadvertence but not assist parties who delay justice. Counsel's excuse of limited devices and other court commitments was bare assertion unsupported by evidence, and he had personally taken the mention date.

p. 6
02

Whether leave to apply for certiorari should still be granted

Holding

Leave would be academic since Hon. Makau had recused herself for want of jurisdiction

Reasoning

The court found that the intended judicial review targeted the Principal Magistrate's jurisdiction, but she had already recused herself and referred the parties to the Chief Magistrate. Granting leave would serve no practical purpose, as leave is discretionary and premised on a live controversy; nothing live remained for determination.

p. 6

Legal principles established

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  • Setting aside an ex parte order is discretionary and requires either improper service or a valid reason for non-attendance.
  • The grant of leave for judicial review requires a live and justiciable controversy; it will not be granted for an academic exercise.

Court orders

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  1. 1.The Notice of Motion dated April 12, 2025 is dismissed with costs to the Respondent and Interested Party

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Environment and Land Court ActSection 3
  • Civil Procedure RulesOrder 12, Rule 7
  • Civil Procedure RulesOrder 51, Rule 15

Cases cited (5)

  • John Gilbert Ouma v Kenya Ferry Services Limited
    [2021] KEHC 7107 (KLR)
  • Elly Odhiambo Mumbo & another v. Caroline Khakame & Another
    [2023] eKLR
  • Esther Wamaitha Njihia and 2 Others v Safaricom Limited
    [2014] eKLR
  • Okiya Omtatah Okoiti and Another v The Attorney General and 6 others
    [2016] eKLR
  • Zacharia Imbochi v Leopard Beach Resort and Spa
    [2023] eKLR
Jurisdiction invoked
Articles 25(c), 48 and 50(1) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 3 of the Environment and Land Court Act

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 Principal Magistrate, Malindi; Belec Veronique t/a Caribou Kijani Real Estate Investment Ltd (Interested Party); Tamu Rafiki Real Estate Limited (Ex parte Applicant) (Environment and Land Miscellaneous Application E001 of 2025) [2025] KEELC 5932 (KLR)", Case Analysis (2025). Judicial Review application arising from Notice of Motion dated April 12, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5932/eng@2025-07-31

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