Republic v Land Registrar Trans-Nzoia County & another Ex-parte Turbo Munyaka Co-operative Society Ltd & 4 others [2017] KEELC 469 (KLR)
The bottom line
#The High Court cannot review its own judicial review orders in Kenya — if you missed a mandamus case, your only remedy is appealing to the Court of Appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Honourable Court has jurisdiction to entertain an application for review in respect to an Order of Mandamus
- 2.Whether the Civil Procedure Act and its Rules apply to judicial review proceedings under the Law Reform Act and Order 53
- 3.Whether the court may determine the applicants' claims to the parcels of land and the disputed chairmanship of the society
Key legal issues
#Whether the High Court has jurisdiction to review its own Order of Mandamus in judicial review
It does not; such an order is final and only amenable to appeal to the Court of Appeal under Section 8(3) and (5) of the Law Reform Act
Relying on the Court of Appeal decision in Biren Amritlal Shah, the court held that there is no provision for review by the Superior Court of its own decisions in judicial review once rendered; Section 8(5) confers a right of appeal to the Court of Appeal, leaving no room for review. The court acknowledged that decisions of concurrent courts (Majanja J and Korir J) supporting inherent jurisdiction were only persuasive and declined to follow them.
Whether the non-service of the affected parties on the mandamus application altered the position
No; non-service is a ground of appeal to the Court of Appeal, not a basis for review by the High Court
Although the court observed that the intended interested parties were adversely affected and had not been served as required by Order 53 Rule 3(2), it held that even the gravity of the consequences could not change the absence of jurisdiction; non-service forms part of the grounds of appeal the applicants may raise before the Court of Appeal, which may issue the necessary orders.
Whether the court could determine ownership of plots and the disputed chairmanship
No; those are internal co-operative society disputes for the Co-operative Societies Tribunal under Sections 76 and 77 of the Co-operative Societies Act
The court found the applicants and the ex-parte applicant were locked in internal society disputes regarding membership, chairmanship and plot ownership. Such disputes must be referred to the Co-operative Societies Tribunal, and the court in judicial review, given its restrictive parameters, could not enquire into the merits of the claims to the parcels of land.
Whether the Civil Procedure Act and Rules apply to judicial review proceedings
The applicants' invocation of Sections 1A, 1B, 3A, Order 1 Rule 10 and Order 45 was challenged as inapplicable, the court exercising a sui generis jurisdiction under Order 53
The ex-parte applicant submitted, relying on Welamondi and Republic v C Lutta Kasamani, that apart from Order 53 no provisions of the Civil Procedure Act and Rules apply to judicial review proceedings. The court's ultimate decision rested on the finality of orders under Section 8 of the Law Reform Act rather than on a definitive ruling on this ground.
Legal principles established
#- In exercising its special jurisdiction under the Law Reform Act, the High Court has no jurisdiction to review its previous judicial review order; the aggrieved party's remedy is an appeal to the Court of Appeal
- The court cannot usurp the jurisdiction of the Co-operative Societies Tribunal to determine internal disputes among members of a co-operative society over ownership of plots
- The High Court in judicial review exercises a sui generis jurisdiction and the provisions of the Civil Procedure Rules other than Order 53 are not applicable
Court orders
#- 1.The Preliminary Objection dated 7th July 2017 is upheld
- 2.The applicant's (Intended Interested Parties') application dated 10/3/2017 (Chamber Summons dated 20th March 2017) is struck out
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 8 of the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules
Relief refused
#Joinder of the Intended Interested Parties and review/setting aside of the judgment of 17th March 2017 including the order of mandamus
The High Court has no jurisdiction to review its own judicial review orders under Section 8(3) & (5) of the Law Reform Act; the remedy is an appeal to the Court of Appeal; the disputes over plots and chairmanship belong to the Co-operative Societies Tribunal
Costs
Not stated in the judgment
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.
in exercising its special jurisdiction under the Law Reform Act, the High Court had no jurisdiction to review its previous order
it appears that a party aggrieved by a prerogative order issued by the Superior Court can only appeal against the same to the Court of Appeal and hence there is no room for review
this Honourable Court may not be able to usurp the jurisdiction and mandate of the Tribunal established under Section 77 of the Act in determining who owns what
Consequently I hereby uphold that Preliminary Objection and strike out the applicant's application dated 10/3/2017.
For now I am persuaded that this court can not look into the merits of the applicant's claim to the parcels of land subject matter of the dispute.
in exercising the powers under Order 53 of the Civil Procedure Rules, the court is exercising neither a civil nor a criminal jurisdiction in the strict sense of the word and that it is exercising a jurisdiction sui generis
Issues in the judgment
#The judgment inconsistently cites the Law Reform Act section relied on in the applicant's submissions, referring to both Section 8(5) and Section 8(3)
Preliminary objection dated 7th July 2017 refers in its grounds to an application dated 10th March 2017, while the application before the court is the Chamber Summons dated 20th March 2017; the court strikes out the application dated 10/3/2017
Paragraph numbering in the judgment skips from 35 to 37
The judgment refers to the intended interested parties' Chamber Summons as 'the applicant's application' in the final orders although the ex-parte applicant is also designated 'applicant' in the title
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Land Registrar Trans-Nzoia County & another Ex-parte Turbo Munyaka Co-operative Society Ltd & 4 others [2017] KEELC 469 (KLR)", Case Analysis (2017). Judicial Review Application (Notice of Motion filed 16th November 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/469/eng@2017-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.