Republic of Kenya v County Commissioner Elgeyo Marakwet & 12 others Ex-parte Gabriel Chemweno & others [2019] KEELC 4901 (KLR)
The bottom line
#The High Court dismissed a clan's bid to block enforcement of a 1984 land order, confirming that judicial review challenges process, not outcomes.
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 ex parte applicants have met the threshold for grant of judicial review orders
- 2.Whether the Magistrate's Court had the jurisdiction to adopt the award as an order of the court
- 3.Whether the persons affected by the decision were heard before it was made
- 4.Whether the decision maker took into account relevant matters or took into account irrelevant matters / whether the decision was arrived at rationally
- 5.Whether the court order of 6th April 1984 is time barred
- 6.Whether members of the Kapkeny Clan required letters of administration to enforce the order
- 7.Who should bear the costs of the application
Key legal issues
#Whether the Magistrate's Court had jurisdiction to adopt the elders' award as an order of the court
The Magistrate's Court had competent jurisdiction under section 7 of the Land Disputes Tribunal Act to adopt the Tribunal's decision as its own judgment; the applicants had not sought to quash the Tribunal's decision itself.
Section 7 of the Land Disputes Tribunal Act required the chairman to file the Tribunal's decision in the magistrate's court, which was then obliged to enter judgment in accordance with it. The disputed land was community land held in common, falling within the Tribunal's jurisdiction under section 3. Since the applicants' orders targeted the Magistrate's Court and not the Tribunal's decision, the court found the adoption court had competent jurisdiction.
Whether the persons affected by the decision were heard before the award was adopted
Both the plaintiff and defendant were present before the Senior Resident Magistrate when the award was adopted on 6th April 1984, so the parties were heard.
The court record dated 6th April 1984 showed both clan representatives were present before J L.A Osiemo SRM when the award was adopted. The court relied on Republic v Marakwet District Land Disputes Tribunal Ex-Parte Shaban Clan, where representatives of the conflicting clans were found to have been heard. The court's role was not to evaluate the facts of the Tribunal dispute.
Whether the court order of 6th April 1984 is time barred under section 4(4) of the Limitation of Actions Act
Although section 4(4) bars actions upon a judgment after twelve years, the court considered the reasons for delay (death of elders, conflict, illiteracy) and the applicants' own delay, and declined to grant prohibition on this basis.
The respondents explained the delay in enforcement as arising from death of elders responsible for execution, conflict in the area, and general ignorance attributable to illiteracy. The court held it could exercise its discretion in considering the delay, noted the impact of clashes and land issues in the area on enforcement of court orders, and observed that the applicants' application was also not brought in a timely manner.
Whether letters of administration were required to enforce the orders
No; the dispute involved communal land and the parties acted in a representative capacity for their clans, so no estates existed for which administration could be taken out.
The heading of the magistrates' court case was Kapkeny Clan and Kabasiron Clan, not individual deceased persons. Since the land was communal and did not belong to any individual applicant or respondent, the applicants were ill placed to demand letters of administration. The orders were obtained for the benefit of the communities involved, which still exist.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision; the court cannot act as a court of appeal over the decider
- An applicant for judicial review must show illegality, irrationality or procedural impropriety in the decision or act complained of
- An order of prohibition cannot undo a decision already made; it can only prevent the making of a decision
- Where parties litigated and adopted an award in a representative capacity for communal land, letters of administration are not required to enforce the resulting orders
Court orders
#- 1.The Notice of Motion dated 20th June 2016 seeking judicial review orders of prohibition and mandamus is dismissed
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (orders of prohibition and mandamus); leave granted on 2nd June 2016
Relief refused
#Orders of prohibition against the County Commissioner, County Government, County Surveyor, County Land Registrar, Chief Magistrate and Chief Land Registrar from enforcing the order of 6th April 1984
The applicants failed to meet the threshold for judicial review relief; judicial review concerns the decision-making process, not the merits of the decision
Order of mandamus against the County Commissioner to maintain law and order impartially
Prayer overtaken by events and the mandamus/remedial thresholds not met; the orders sought do not fit judicial review
Order of prohibition against the Chief Magistrate from further proceedings in Eldoret SRMC Land Case No. 53 of 1983 on grounds of functus officio
No good reason established; the adoption of the award was by a court of competent jurisdiction
Order of mandamus compelling the Cabinet Secretary for Lands to ensure speedy enactment of Community Land Legislation
Overtaken by events as the Community Land Act was assented to on 31st August 2016 and came into effect on 21st September 2016
Costs
Each party to bear their own costs, as they are communities that live together
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.
Having considered all the submissions and the judicial authorities cited I find the applicants have not met the threshold for grant of the orders sought and the same is dismissed. I order that each party to bear their own costs as they are communities that live together.
The remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself.
In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.
an order of prohibition is powerless against a decision which has already been made before such an order is made. Such an order can only prevent the making of a decision.
I find that the decision was therefore adopted by a Court that had competent jurisdiction to do the same.
Even if a case falls into one of the categories where judicial review will' lie the Court is not bound to grant it: the jurisdiction to make any of the various orders available in judicial review proceedings is discretionary.
Issues in the judgment
#The judgment inconsistently dates the order under challenge, referring variously to an order of 6th April 1984 and to the applicants contending an order 'dated 6th April 1983' is time barred
The judgment uses both 'Kapkeny' and 'Kakeny' for the same clan in the prayers
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic of Kenya v County Commissioner Elgeyo Marakwet & 12 others Ex-parte Gabriel Chemweno & others [2019] KEELC 4901 (KLR)", Case Analysis (2019). Judicial Review Application (Notice of Motion dated 20th June 2016), Eldoret. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4901/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.