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ELCDismissedELC Civil Miscellaneous Application No. 3 of 2021 (Judicial Review)

Republic v Deputy County Commissioner Ikutha Sub-County Ex parte Ruth Kavengi Mulyunga; Musyoka Mbeeni Kimuli (Interested Party) [2022] KEELC 424 (KLR)

Environment and Land Court
21 April 2022
5,180 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Kitui Environment and Land Court dismissed a landowner's judicial review because she filed beyond the strict six-month deadline and proved no unfairness.

What this practically means

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Executive summary

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The ex parte applicant Ruth Kavengi Mulyunga sought certiorari to quash the judgment of the Deputy County Commissioner, Ikutha Sub-County in Minister's Appeal No. 33 of 2012, which upheld the land adjudication officer's award of Land Parcel No. 39 Ilamba 'A' to the interested party, and mandamus compelling the Deputy County Commissioner to vacate his decision and re-hear the appeal. She claimed bias, breach of natural justice, and that her long occupation since 1987 was ignored. The respondent filed grounds of opposition asserting lawful exercise of statutory power under section 29 of the Land Adjudication Act, while the interested party contended the application was filed out of time, delved into the merits contrary to judicial review tenets, and was otherwise incompetent. The court framed three issues: limitation, competency, and merit. It found that leave was granted on 19th April 2018 on the misleading information that the decision was made on 2nd August 2017, whereas the signed judgment was dated 5th May 2017, so leave was sought outside the mandatory six months under section 9(3) of the Law Reform Act and Order 53(2); the leave was set aside, rendering the motion incompetent. It nonetheless held the motion formally competent on the affidavit and exhibits, and that Order 51 does not apply to judicial review. On the merits, it found no proof of bias or unfair process, holding that judicial review does not permit re-evaluation of evidence and that the court's role over land adjudication is supervisory only. The mandamus prayer was untenable. The motion was dismissed with costs to the respondent and interested party.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for leave filed on 25th January 2018 and Notice of Motion application filed on 5th May 2018 were filed out of time
  2. 2.Whether the substantive Notice of Motion is competent
  3. 3.Does the substantive notice of motion have merit and should the Judicial review orders sought be granted?

Key legal issues

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01

Limitation for leave to apply for certiorari

Holding

The leave application was filed about eight months after the Minister's decision of 5th May 2017, outside the mandatory six months; the leave granted was improper and was set aside, rendering the substantive motion incompetent

Reasoning

Section 9(3) of the Law Reform Act and Order 53(2) require leave for certiorari within six months. The court found the impugned decision was dated 5th May 2017, not 2nd August 2017 as counsel had represented, so leave was granted on misleading information. No nullity exception applied because nothing on the face of the decision showed it was a nullity incapable of triggering the statutory bar.

p. 4
02

Competency of the substantive Notice of Motion

Holding

The motion was competent on form: the verifying and supporting affidavits contained the facts and exhibited the impugned judgment; Order 51 grounds requirements do not apply to judicial review

Reasoning

The court found the affidavits accompanying the leave application annexed the Deputy County Commissioner's judgment and stated the facts in the Statement of Facts. It also held judicial review is sui generis, so Order 50/51 provisions of the Civil Procedure Rules are inapplicable.

p. 5
03

Whether the Respondent breached natural justice or was biased

Holding

No particulars of unfairness or bias were pleaded or proved; the applicant was notified, attended, was heard and called witnesses, and the Respondent analysed the evidence

Reasoning

The court reviewed the Respondent's judgment and found he considered evidence from both parties. Judicial review does not permit the court to re-evaluate evidence or sit on appeal over the Minister's decision; the applicant was impermissibly seeking a reconsideration of the evidence.

p. 6
04

Scope of the court's role in land adjudication matters

Holding

The court's role in adjudication matters is supervisory only; it cannot usurp the functions of adjudication officers and bodies under the Land Adjudication Act

Reasoning

Relying on Tobias Achola Osidi, the court held that ascertainment and determination of rights in an adjudication area is reserved for officers and quasi-judicial bodies under the Act, and courts may only ensure the process accords with the law. The applicant had exhausted her appeal mechanisms.

p. 6

Legal principles established

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  • The six-month limitation period for leave to apply for certiorari under Section 9(3) of the Law Reform Act is mandatory and its breach is fatal
  • An ex parte applicant owes a duty of full and candid disclosure of all material facts
  • Judicial review is concerned with the decision-making process, not the merits, and the court cannot sit on appeal over the Minister's decision
  • Judicial review proceedings under Order 53 are sui generis; other provisions of the Civil Procedure Rules do not apply

Court orders

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  1. 1.Leave granted on 19th April 2018 was set aside as having been improperly granted out of time
  2. 2.The Notice of Motion dated 30th April 2018 was dismissed
  3. 3.Costs awarded to the Respondent and the Interested Party

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 53 of the Civil Procedure Rules and Section 9 of the Law Reform Act (Cap 26)

Relief refused

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Order of certiorari to quash the Deputy County Commissioner's judgment in Minister's Appeal No. 33 of 2012

The application for leave was filed out of time under Section 9(3) of the Law Reform Act and Order 53(2) of the Civil Procedure Rules, and on the merits no breach of natural justice or bias was proved

p. 5

Order of mandamus directing the Deputy County Commissioner to vacate his decision and re-hear the appeal

The prayer was untenable as no factual or legal provisions were shown to anchor such an order

p. 6

Costs

Dismissed with costs to the Respondent and the Interested Party

Quotable passages

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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 the end I find that the Notice of Motion dated 30 th April 2018 lacks merit and the same is hereby dismissed with costs to the Respondent and the Interested Party.
p. 6Final orders - dismissal
I find that failure to conform with the provisions of Section 9 (3) of the Law Reform Act and Order 53 (2) of the Civil Procedure Rules is fatal to the application herein.
Mandatory six-month limitation for certiorari leave
It is well established that a person who makes an exparte application to court is under obligation to candidly, fairly, frankly and faithfully make the fullest possible disclosure of all material facts within his knowledge.
p. 4Duty of full disclosure in ex parte applications
The Court cannot in judicial review proceedings sit on appeal on the Minister's decision.
p. 5Supervisory, not appellate, role in judicial review
The courts role is limited to supervision and enforcement of the decisions of adjudication bodies.
p. 6Supervisory role over land adjudication

Issues in the judgment

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material

The date of the impugned decision is inconsistent within the judgment - variously stated as 2nd August 2017 and 5th May 2017

minor

The date the substantive Notice of Motion was filed is inconsistent - stated as 5th May 2018 and 9th May 2018

minor

The filing date of the Chamber Summons is inconsistent - stated as 25th January, 24th January and dated 22nd January 2018

minor

The interested party's name appears variously as Musyoka Mbeni Kimuli and Musyoka Mbeeni Kimuli

minor

The source of the purchase of the land is given with varying spellings - Kailu Mbuno, Kalua Mbono and Kalua Mbuno

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 Deputy County Commissioner Ikutha Sub-County Ex parte Ruth Kavengi Mulyunga; Musyoka Mbeeni Kimuli (Interested Party) [2022] KEELC 424 (KLR)", Case Analysis (2022). ELC Civil Miscellaneous Application No. 3 of 2021 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/424/eng@2022-04-21

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