Republic v Director of Land Adjudication & Settlement Officer & 3 others; Gitonga Narangwi (Interested Party) Ex- Parte Domiziano Ratanya [2018] KEELC 136 (KLR)
The bottom line
#A Kenyan court struck out a land judicial review case because the applicant failed to attach the actual decision he was challenging to his court documents.
What this practically means
#Executive summary
#Key legal issues
#Whether the judicial review motion could succeed where the impugned proceedings and decision were not attached to the verifying affidavit
The application was defective and struck out because the court had nothing before it to examine for illegality, irregularity, bias or excess of jurisdiction
The court noted the applicant's evidence was uncontroverted since no replying affidavits were filed and grounds of opposition without sworn evidence were of no value. However, the verification affidavit did not annex the impugned proceedings and decision of the Land Adjudication Officer. Without them, and absent any acknowledgement by the respondents of their existence, the court could not verify their contents or examine them for legality or irregularity. Uncontroverted pleadings alone cannot establish the merits of a judicial review claim.
The evidentiary value of grounds of opposition filed without a replying affidavit
Grounds of opposition not supported by sworn affidavit evidence are of no value in opposing a notice of motion
Relying on the Commissioner General Kenya Revenue Authority vs Silvano Onema Owaki decision, the court held that the verifying affidavit contains the evidence relied on by a judicial review applicant, and by parity of reasoning only a replying affidavit can effectively counter the factual statements in the verifying affidavit. Grounds of opposition, being unsworn, required a replying affidavit to have any effect. The respondents also filed no submissions, so the court was left only with the applicant's material, which still had to prove the case.
Legal principles established
#- Grounds of opposition cannot effectively counter a verifying affidavit without a replying affidavit
- A judicial review applicant must prove his case even in the absence of a response by his adversary
- The impugned proceedings and decision must be attached to the verifying affidavit in a judicial review application
Court orders
#- 1.The notice of motion for judicial review is struck out
- 2.No orders as to costs
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court over orders of certiorari and prohibition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Director of Land Adjudication & Settlement Officer & 3 others; Gitonga Narangwi (Interested Party) Ex- Parte Domiziano Ratanya [2018] KEELC 136 (KLR)", Case Analysis (2018). Judicial Review Notice of Motion dated 11/4/2018 (Objection No. 832, Parcel No. 161). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/136/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.