James Kariko Bacha & 2 others v Land Disputes Tribunal Kiambu West & another [2019] KECA 174 (KLR)
The bottom line
#The Court of Appeal confirmed that Kenyans must finish the appeal routes a statute provides before running to the High Court for judicial review.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, based on the material placed before the learned Judge, he erred in declining to grant the appellants leave to commence judicial review proceedings
Key legal issues
#Exhaustion of statutory remedies before invoking judicial review
The appellants abandoned the appellate process under the Land Disputes Tribunal Act (appeal to the Provincial Appeals Committee and further appeal to the High Court on points of law) and could not bypass it through judicial review; the statutory appellate process was best suited to determine the dispute, including the jurisdictional question as a point of law.
The Court held that although an alternative forum does not bar judicial review, the statutory appeal route under the Land Disputes Tribunal Act was suited to determine the dispute conclusively. The jurisdictional objection could have been raised as a pure point of law in the High Court at the tail end of that appellate process. Having failed to invoke it, the appellants could not succeed at the leave stage.
Purpose and threshold of leave for judicial review
Leave is a filtering mechanism; the applicant must show a prima facie or arguable case, and the learned Judge was entitled to find the appellants had not.
The Court reiterated that leave is meant to scrutinise and sieve claims so that only serious, non-frivolous matters proceed to substantive hearing. The appellants had not exhausted the remedies under the Act before moving the High Court, so the material before the Judge did not warrant the exercise of discretion in their favour.
Interference with judicial discretion on appeal
No misdirection was discerned in the Judge's exercise of discretion, so the Court of Appeal declined to interfere.
Applying the principles in Kenya Revenue Authority v Darasa Investments Limited and Coffee Board of Kenya v Thika Coffee Mills, the Court found the Judge had not misdirected himself, nor was he clearly wrong in a manner occasioning injustice. The appeal therefore failed on this ground as well.
Legal principles established
#- Leave to apply for judicial review is not granted as a matter of course; the applicant must demonstrate a prima facie or arguable case
- Where the Constitution or a statute provides a remedy and confers jurisdiction, that jurisdiction must be invoked and exhausted before resorting to judicial review
- An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself or was clearly wrong and injustice was occasioned
- The existence of an alternative forum does not bar judicial review, but exemption from the exhaustion requirement is granted only in exceptional circumstances in the interest of justice under section 9(4) of the Fair Administrative Action Act
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Misc. JR ELC No. 88 of 2008
- Jurisdiction invoked
- First appeal to the Court of Appeal against the High Court's ruling in a judicial review leave application (sections 8 and 9 of the Law Reform Act and Order LIII Rules 1 & 2 of the Civil Procedure Rules were the provisions invoked below)
Relief refused
#Leave to commence judicial review proceedings for orders of certiorari and prohibition (sought in the High Court and effectively pursued on appeal)
The appellants did not exhaust the appellate remedies available under the Land Disputes Tribunal Act, and the Judge correctly exercised his discretion in refusing leave
Costs
No order as to costs, as this was a family dispute
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.
leave to apply for judicial review proceedings is not granted as a matter of course or mere formality.
where the Constitution or statute provides a remedy and confers jurisdiction upon a Court, tribunal, person, body or any authority, that jurisdiction should be invoked and exhausted.
The upshot is that we find no merit in the appeal which we hereby dismiss with no order as to costs as this was a family dispute.
Issues in the judgment
#The judgment contains typographical errors in the verbatim quotations from the Fair Administrative Action Act and Hulbhai Gedi Abdille ('nay' for 'may', 'effectvely' for 'effectively', 'delt' for 'dealt'); quoted above character-for-character as they appear in the judgment
The judgment refers to five movants but names 'Harry Bacha Njuguna' twice among the applicants before the High Court ('James Kariko Bacha, Harry Bacha Njuguna and Mathew Njoroge Bacha and two others, namely Walter Kabetu Bacha and Harry Bacha Njuguna'), one of whom was presumably intended to be a different person
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kariko Bacha & 2 others v Land Disputes Tribunal Kiambu West & another [2019] KECA 174 (KLR)", Case Analysis (2019). Civil Appeal No 71 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/174/eng@2019-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.