Republic v Ronald Barasa, National Land Commission, Land Registrar Trans Nzoia & Cabinet Secretary, Lands Housing & Urban Development [2017] KEELC 128 (KLR)
The bottom line
#The court struck out a land judicial review case because it skipped the required leave step and put evidence in the wrong document.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether grounds 2 to 5 of the preliminary objection dated 13/3/2017 amount to good grounds for a preliminary objection
- 2.Whether the Chamber Summons dated 4/10/2016 is incurably defective for want of form for offending Order 53 Rules 1(1) and (2) of the Civil Procedure Rules
Key legal issues
#Whether grounds 2 to 5 of the preliminary objection qualify as preliminary objections
Grounds 2 to 4 require evidence to be tabled and ground 5 is too general; they do not amount to good grounds for a preliminary objection and were struck out.
The court applied the principle that a preliminary objection must be capable of determination without recourse to evidence. Grounds 2 to 4, raising sub judice and res judicata based on proceedings in Kitale ELC Case No. 107 of 2015, would require examination of facts and pleadings. Ground 5, alleging abuse of process, was too general and lacked the specificity required of a proper preliminary objection. Only ground 1, a pure point of law on form under Order 53, survived.
Whether the Chamber Summons dated 4/10/2016 was defective for want of leave under Order 53 Rule 1(1) and (2)
The Chamber Summons was fatally flawed: it sought substantive restraining orders without any prayer for leave, contrary to Order 53 Rule 1(1) and (2).
Order 53 Rule 1(1) prohibits any application for mandamus, prohibition or certiorari unless leave has been granted, and Rule 1(2) requires the leave application to be ex parte, in chambers, accompanied by a statement and verifying affidavit. The chamber summons here proceeded directly to substantive orders with no prayer for leave. The court held that even if evidence existed, the absence of a leave prayer alone rendered the application fatally defective.
Whether the statements and verifying affidavit complied with Order 53 Rule 1(2)
The statements improperly contained evidence and annexures while the verifying affidavit was devoid of evidence; the application was incompetent for want of evidence.
Relying on the Court of Appeal in the Marenga Filing Station case and the Tana River Pastoralists decision, the court held that all evidential facts must be set out in the verifying affidavit, not the statement. The statement should contain only the name and description of the applicant, relief sought and grounds. Here, the two statements attempted to give evidence with annexures, while the verifying affidavit, which should carry all evidence, contained none. The application therefore failed for want of evidence.
Legal principles established
#- A judicial review application for mandamus, prohibition or certiorari cannot be brought unless leave has first been sought and granted in accordance with Order 53 Rule 1
- In judicial review applications, evidential facts must be set out in the verifying affidavit; the statement should contain only the name and description of the applicant, the relief sought and the grounds, and has no evidential value
- A preliminary objection that requires evidence to be tabled, or that is too general and lacks specificity, is not a good preliminary objection
Court orders
#- 1.Grounds Nos. 2, 3, 4 and 5 of the preliminary objection are struck out
- 2.The Chamber Summons dated 4/10/2016 is struck out with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules (Chamber Summons dated 4/10/2016)
Relief refused
#All prayers in the Chamber Summons dated 4/10/2016 (restraint of registration of parcels excised from LR No. 2198/1, restraint of processing of titles, and consequential orders)
The application did not seek leave as required by Order 53 and the statements and verifying affidavit were fatally flawed, being devoid of evidence
Costs
The Chamber Summons is struck out with costs to the 1st respondent (application struck out with costs).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the above reasons, I find that the Chamber Summons dated 4/10/2016 has no merit. The same is hereby struck out with costs.
The court will consider grounds Nos.1, of the Preliminary Objection only; grounds Nos. 2, 3, 4 and 5 are struck out for the reasons given herein above.
We would observe that it is the verifying affidavit not the Statement to be verified, which is of evidential value in an application for judicial review.
The statements and the verifying affidavits in the instant chamber summons are fatally flawed; besides, even if there were any evidence, the chambers summons itself is fatally flawed as it is devoid of any prayer seeking leave.
Issues in the judgment
#The judgment describes the applicant's case as relating to LR No. 2198/1 but the respondents' replying affidavit is recorded as asserting the application relates to a non-existent parcel, and the court notes this internally
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Ronald Barasa, National Land Commission, Land Registrar Trans Nzoia & Cabinet Secretary, Lands Housing & Urban Development [2017] KEELC 128 (KLR)", Case Analysis (2017). Misc. Civil Application No. 7 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/128/eng@2017-08-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.