[2020] KEELC 3355 (KLR)
The court held that judicial review proceedings are limited to reviewing the decision-making process and do not extend to granting substantive orders such as eviction. The court further found that it was functus officio, having already determined the main motion, and therefore lacked jurisdiction to entertain the...
Source-derived case information.
- Citation
- [2020] KEELC 3355 (KLR)
- Parties
- Applicant: M'Alaine Yusuf Maitima; Respondent: M'Lingera M'Nguthuri; Respondent: The Land Adjudication Officer, Tigania District
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 10 of 2013
- Procedural Posture
- Judicial Review Application / Ruling on Notice of Motion for Eviction Orders
- Outcome
- application dismissed
- Legal Topics
- Eviction Orders, Judicial Review Scope, Functus Officio, Land Adjudication, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
M'Alaine Yusuf Maitima
Applicant
M'Lingera M'Nguthuri
Respondent
The Land Adjudication Officer, Tigania District
Respondent
Procedural Posture
Judicial Review Application / Ruling on Notice of Motion for Eviction Orders
Legal Issues
- 1 Whether the court has jurisdiction to grant eviction orders in judicial review proceedings.
- 2 Whether the application is an abuse of the court process and the court is functus officio.
- 3 Whether the applicant is entitled to the eviction orders sought.
Ratio Decidendi
The court held that judicial review proceedings are limited to reviewing the decision-making process and do not extend to granting substantive orders such as eviction. The court further found that it was functus officio, having already determined the main motion, and therefore lacked jurisdiction to entertain the present application for eviction orders. The application was also found to be procedurally defective, with the applicant confusing party designations. Consequently, the application for eviction was dismissed as unmerited.
Court Disposition
application dismissed
Orders
- The application dated 12/2/2019 is dismissed.
- Each party to bear their own costs of the application.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
JUDICIAL REVIEW APPLICATION NO. 10 OF 2013
IN THE MATTER OF AN APPLICATION BY M’RINGERA M’NGUTHARI FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI
AND
IN THE MATTER OF LAND PARCEL NO. 3677 ANTUAMBURI ADJUDICATION SECTION
AND
IN THE MATTER OF THE LAND CONSOLIDATION ACT CAP 283
REPUBLIC..............................................................................APPLICANT
VERSUS
M’LINGERA M’NGUTHURI ............................INTERESTED PARTY
THE LAND ADJUDICATION OFFICER
TIGANIA DISTRICT........................................................RESPONDENT
M’ALAINE YUSUF MAITIMA ....................EX-PARTE APPLICANT
RULING
1. This is a ruling on the notice of motion dated 12/2/2019 brought under the provisions of section 3 and 3 (a) of the Civil Procedure Act seeking for orders of eviction of “the interested party from the ex-parte applicant’s parcel of land No. 3677 Antuambui Adjudication section and that the O.C.S Mikinduri Police station be authorized to provide security during the eviction. Applicant also prays for costs of the application”.
2. The application is premised on the grounds on the face of it and on the supporting affidavit of M’Alaine Yusuf Maitima who stated that on 28/6/2018, the court struck out the entire motion and the interested party occupied his land and stayed thereon because of the stay in the main motion. The interested party has adamantly refused to vacate the land despite the court’s order and therefore requests for an eviction order.
3. The motion was opposed via grounds of opposition by the ex-parte applicant, who contended that this court is functus officio and cannot entertain the application. The application is an abuse of the court process and is therefore fatally defective.
4. It was held in Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001 that;
“Judicial review is concerned with the decision-making process, not with the merits of the decision itself.”
5. Bearing in mind the above authority on what judicial review proceedings concern and taking into account that this application is opposed, then I find that this court cannot grant the eviction orders sought. I also note that the applicant has mixed up the parties in his application where he refers to himself as the Exparte-Applicant, yet he is the interested party.
6. I find that the application dated 12/2/2019 is not merited and the same is therefore dismissed, but each party is to bear their own costs of the application.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 26TH FEBRUARY, 2020 IN THE PRESENCE OF:-
C/A: Kananu
Muriithi holding brief for Ndubi for Exparte Applicant
Nyamu Nyaga holding brief for Kimathi K. for Interested Party
Kiongo for the Respondent
Exparte Applicant
HON. LUCY. N. MBUGUA
ELC JUDGE