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Court of AppealDismissedCivil Appeal No. 186 of 2004· [2013] KECA 273 (KLR)

Biren Amritlal Shah & another v Republic & 3 others [2013] KECA 273 (KLR)

Court of Appeal
20 September 2013
David Kenani MaragaD. K. MaragaSKS. Gatembu KairuAMAgnes K. Murgor
2,309 words in judgment
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The bottom line

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The Court of Appeal confirmed that Kenyan High Court judges cannot review their own judicial review decisions; the only remedy is an appeal.

What this practically means

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Executive summary

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This Court of Appeal ruling (Maraga, Gatembu Kairu & Murgor, JJ.A) dismissed an appeal by Biren Amritlal Shah and Bharatkumar Nathalal Shah against a High Court ruling by Githinji, J dated 31 July 2002, which had dismissed their application for review of a mandamus order restoring Antony Kibiribiri as registered proprietor of Title No. Chembe/Kibabamshe/273. The 4th respondent had earlier obtained judicial review orders after the Land Registrar and Commissioner of Lands cancelled his registration without a hearing and issued a second title deed to the appellants. The appeal raised three issues: whether the High Court could review its own judicial review decision; whether the Judge erred in failing to consider newly discovered evidence (two Green Cards); and whether the dispute should have proceeded by way of a substantive suit rather than judicial review. The Court held that judicial review orders under the Law Reform Act are final subject only to appeal to the Court of Appeal under section 8(5), and that the review jurisdiction in section 80 of the Civil Procedure Act and Order XLIV applies only to the High Court's ordinary jurisdiction - the High Court therefore had no power to review its own judicial review order. The Court further agreed that the Judge had in fact considered the new evidence, which merely proved the Registrar's illegality, and affirmed that judicial review is confined to the decision-making process, so competing claims to title must be litigated in an ordinary suit. The appeal was dismissed with costs to the 4th respondent.

Key legal issues

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01

Jurisdiction of the High Court to review its own judicial review decision

Holding

The High Court cannot review its own judicial review orders under section 80 CPA and Order XLIV; those provisions apply to orders in the Court's ordinary jurisdiction, and the remedy is appeal under section 8(5) of the Law Reform Act

Reasoning

Section 8(3) of the Law Reform Act makes judicial review orders final subject to appeal to the Court of Appeal, and section 8(5) gives an aggrieved party the right of appeal. Order 53 contains no provision for review by the Superior Court of its own judicial review decisions. The review jurisdiction under section 80 CPA applies only where the Court exercises its ordinary jurisdiction in suits.

p. 3
02

Whether the learned Judge misdirected himself in failing to consider the new evidence

Holding

The Judge did consider and re-evaluate the new evidence and concluded that it did not alter his view that the 2nd and 3rd respondents acted without authority; the Court of Appeal agreed he did not misdirect himself

Reasoning

The Judge found that the Green Card produced in the review application actually proved the illegality of opening a second register and issuing a second title deed four months after the first registration. He held that if the copy of the second register had been before the court during the judicial review, certiorari would have been granted.

p. 4
03

Whether the dispute should have been resolved by judicial review or a substantive suit

Holding

Judicial review is confined to the decision-making process; questions of competing title between private parties must be determined in an ordinary suit

Reasoning

The question before the High Court was not which party held a superior title but whether the 2nd and 3rd respondents had power under the Registered Land Act to cancel the registration without hearing the 4th respondent. A party claiming to have been wrongly deprived of property should sue in the ordinary way so that all issues can be ventilated.

p. 4

Legal principles established

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  • The High Court has no jurisdiction to review its own decision in judicial review proceedings under section 80 of the Civil Procedure Act and Order XLIV; the remedy against such an order is an appeal to the Court of Appeal under section 8(5) of the Law Reform Act
  • Judicial review concerns the decision-making process, not the merits of the decision or private rights; a party claiming superior title must sue in the ordinary way

Court orders

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  1. 1.Appeal dismissed with costs to the 4th respondent

Authorities

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Legislation

  • Law Reform Actsection 8(3)
  • Law Reform Actsection 8(5)
  • Law Reform Actsection 9
  • Civil Procedure Actsection 80
  • Civil Procedure RulesOrder XLIV
  • Civil Procedure RulesOrder 53
  • Registered Land Act

Cases cited (5)

  • Commissioner of Lands vs Coastal Aquaculture Ltd
    Civil Appeal No. 252 of 1996
  • R vs Secretary of State for Education and Science exparte Avon County Council
    (1991)
  • Commissioner of Lands vs Kunste Hotel Limited
    CA No. 234/95
  • R vs Judicial Service Commission
    Misc. Civil Application No. 1025 of 2003
  • Akeba vs Kenya Ports Authority
    CA No. 255 of 2003
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Appl. No. 316 of 2001
Jurisdiction invoked
Section 8(5) of the Law Reform Act - appeal to the Court of Appeal against orders made in the exercise of the High Court's supervisory jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Biren Amritlal Shah & another v Republic & 3 others [2013] KECA 273 (KLR)", Case Analysis (2013). Civil Appeal No. 186 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/273/eng@2013-09-20

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