Polly W. Gitimu v Republic & 2 others [2018] KECA 164 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that government decisions on public property can be challenged through judicial review, and upheld an order protecting a civil servant's home purchase.
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 subject matter of the dispute was justiciable as a judicial review application
- 2.If so, whether the trial court exercised its discretion judiciously
Key legal issues
#Justiciability of the dispute as judicial review
The subject matter was justiciable as a judicial review because what was questioned was the process adopted by the Permanent Secretary in discharging a public duty of disposing of Government property, not a private breach of contract
The Court reviewed the expansion of judicial review from the three common law heads (illegality, irrationality, procedural impropriety) to a constitutionally underpinned supervision of public power under Articles 22, 23 and 47 and the Fair Administrative Action Act. Citing the Supreme Court's IEBC v NASA decision, it held there is one, not two mutually exclusive, systems of judicial review. The orders sought in the JR were based on the process leading to the notice to vacate, not a pleading of breach of contract, so section 8(1) of the Law Reform Act did not bar the remedy and the trial court had jurisdiction.
Exercise of the trial court's discretion
The trial court's discretion was properly exercised: it found the PS acted in excess of jurisdiction, violated natural justice, and was estopped from reallocating the house after accepting the applicant's deposit
Applying the settled principles in United India Insurance v East African Underwriters, the Court could interfere with a discretionary ruling only on established grounds of misdirection. The trial court's findings - that the PS accepted Christine's appeal and 10% deposit, became functus officio, failed to notify or refund her before reallocating to the interested party, and acted arbitrarily and capriciously - were supported by the largely uncontroverted record. The appellant merely sought a different weighting of the facts, which is not a basis for appellate interference.
Legal principles established
#- Judicial review is constitutionally underpinned in Kenya; common law and statutory judicial review remedies are fused into constitutional remedies, and the High Court's supervisory jurisdiction extends to the process, not the merits, of public authority decisions disposing of public property
- An appellate court will not interfere with a discretionary decision of the trial judge unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong
Court orders
#- 1.The appeal was dismissed with costs
- 2.The ruling and orders of the High Court (Warsame, J) dated 24th November 2011, granting the judicial review orders of certiorari and mandamus quashing the PS's letter of 20th May 2005, were upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H. C. Misc. Appl. No. 785 of 2005
- Jurisdiction invoked
- First appeal to the Court of Appeal; the judgment does not state the specific statutory provision conferring appellate jurisdiction. The appeal concerned the supervisory jurisdiction in judicial review under sections 8 and 9 of the Law Reform Act and Order LIII of the former Civil Procedure Rules.
Relief refused
#The appellant's 20 grounds of appeal challenging the jurisdiction of the trial court and the exercise of its discretion
The subject matter was justiciable as a judicial review, and no misdirection by the trial judge was established to justify interference with a discretionary decision
Costs
Appeal dismissed with costs (to the successful respondents).
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.
We hold that Kenya has one and not two mutually exclusive systems for judicial review. The common law and statutory judicial review are complementary and mutually nonexclusive judicial review approaches.
Ultimately, this appeal fails and we order that it be and is hereby dismissed with costs.
we find on the first issue, that the subject matter was justiciable as a JR and the trial court had the jurisdiction to deal with it.
The judicial review powers that were previously regulated by the common law under the prerogative and the principles developed by the courts to control the exercise of public power are now regulated by the Constitution.
It is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts;
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Polly W. Gitimu v Republic & 2 others [2018] KECA 164 (KLR)", Case Analysis (2018). Civil Appeal 124 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/164/eng@2018-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.