Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal 158 of 2007· [2015] KECA 923 (KLR)

Mohamed Abushiri Mukullu v Minister for Lands and Settlement & 6 others

Court of Appeal
12 February 2015
HOH.M. OkwenguMAM.S. Asike-MakhandiaFSF. Sichale
2,851 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that waiting 22 years to challenge a land decision through judicial review is simply too long.

What this practically means

#

Executive summary

#
The appellant sought leave in the High Court to apply for certiorari, prohibition and mandamus out of time, seeking to quash 1980 and 1984 land adjudication decisions over plots on Wasini Island, contending the Land Adjudication Act had been irregularly applied to land governed by the Land Titles Act as part of the ten-mile Coastal Strip. Maraga, J. refused leave, expressly declining to follow the Goldenberg decision, which had read the six-month limitation narrowly. The appellant appealed on three grounds, principally that the judge erred in departing from precedent. The Court of Appeal dismissed the appeal. It held, applying Jasbir Singh Rai and Peter Ng'ang'a Muiruri, that the Constitutional and Judicial Review Division is merely a division of the High Court, not a superior court, so the Goldenberg decision was of persuasive value only and did not bind the judge. The court affirmed that decisions of concurrent jurisdiction cannot bind. It further held that the 22-year delay was unjustified, that judicial review remedies are exceptional and unavailable to indolent litigants, and that the judge's discretion was properly exercised in considering public policy, the sensitivity of Coast land, and the propriety of the judicial review forum. The court found no demonstration that the judge had legitimised ultra vires acts by effluxion of time. The High Court ruling refusing leave was upheld and the appeal dismissed with costs.

Key legal issues

#
01

Stare decisis and the status of the Constitutional and Judicial Review Division

Holding

The Goldenberg decision, being from a division of the High Court of concurrent jurisdiction, was not binding on Maraga, J.; the judge was entitled not to follow it.

Reasoning

The court applied Jasbir Singh Rai and Peter Ng'ang'a Muiruri: the Constitutional and Judicial Review Division is an administrative creation for cause-list management, not an independent or superior court. Horizontal precedent is persuasive only, so the judge could depart from Goldenberg if not clearly bound. Upholding the contrary would perpetuate constitutional and judicial heresy regarding court ranking.

p. 4
02

Delay and limitation in judicial review

Holding

A 22-year delay in seeking leave was not justified; the application was time-barred and judicial review was not the proper forum.

Reasoning

While jurisdiction may be raised at any time, best practice demands it be raised at the earliest. The judge properly considered public interest, the sensitivity of Coast land, and the need for certainty of administrative decisions. Indolent litigants should invoke other jurisdictions rather than judicial review.

p. 3
03

Whether effluxion of time legitimises ultra vires acts

Holding

The appellant failed to show the judge endorsed ultra vires acts; the judge merely held that their legitimacy is best challenged in another forum.

Reasoning

The court found the third ground unsubstantiated: the judge did not approve ultra vires acts but held that judicial review, with its exceptional remedies and limitation regime, was not the proper arena to challenge decades-old decisions, protecting third parties not before the court.

p. 5
04

Appellate interference with judicial discretion

Holding

The judge's discretion in granting or refusing leave was properly exercised; no capricious or injudicious exercise warranted intervention.

Reasoning

An appellate court may intervene only where discretion was exercised capriciously, whimsically or injudiciously. Here the judge considered public policy, the delay, and the propriety of the judicial review forum - all pertinent considerations - so the Court of Appeal would not disturb the ruling.

p. 5

Legal principles established

#
  • The Constitutional and Judicial Review Division of the High Court is merely a division of the High Court and enjoys no superior status over other divisions or a single judge; decisions of courts of concurrent jurisdiction are only persuasive.
  • Decisions of higher courts bind lower courts unless distinguished or overruled; decisions of concurrent jurisdiction do not bind.
  • Judicial review remedies are exceptional and unavailable to indolent litigants who sleep on their rights.

Court orders

#
  1. 1.The appeal is dismissed with costs
  2. 2.The ruling of the High Court dated 9th March 2007 dismissing the appellant's application for leave to apply for orders of certiorari, prohibition and mandamus is upheld

Authorities

#

Legislation

  • Land Adjudication ActCap 284
  • Land Titles ActCap 282
  • Law Reform ActSection 9(2)
  • Civil Procedure RulesOrder 53 Rule 2
  • Constitution of Kenya (former)Section 67

Cases cited (5)

  • Republic v Judicial Commission into The Goldenberg Affair and 3 Others, Ex Parte Malulu & Others
    [2004] eKLR

    That the six-month limitation for certiorari applies only to judgments, orders and proceedings of inferior courts; ultra vires nullities are not covered.

  • Jasbir Singh Rai & 3 Others v Tarlochan Singh & 4 Others
    [2013] eKLR

    Rule of precedent promotes predictability, diminishes arbitrariness and enhances fairness; higher court decisions bind lower courts.

  • Peter Ng'ang'a Muiruri v Credit Bank Limited & 2 Others
    [2008] eKLR

    The Constitutional and Judicial Review Division is not an independent or superior court but a division of the High Court.

  • Kenya Breweries Ltd. v. Municipal Council of Mombasa & Others
    HC Misc. Application No. 260 of 2001

    Interpretation of section 9(2) of the Law Reform Act and Order 53 Rule 2 on limitation for judicial review.

  • The Commissioner of Lands v Kunste Hotel Limited
    Nakuru Civil Appeal No. 234 of 1995 (CA)

    Judicial review remedies are exceptional and should not be made available to indolents who sleep on their rights.

On appeal from
High Court of Kenya at Mombasa
Misc. Civil App. No. 1091 of 2006
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a ruling of the High Court denying leave to apply for judicial review out of time (Law Reform Act, s 9(2); Order 53 Rule 2 of the Civil Procedure Rules)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Mohamed Abushiri Mukullu v Minister for Lands and Settlement & 6 others", Case Analysis (2015). Civil Appeal 158 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/923/eng@2015-02-12

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