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Court of AppealDismissedCivil Appeal No. 266 of 2017· [2019] KECA 383 (KLR)

Market Plaza Limited v Commissioner for Lands & 3 others [2019] KECA 383 (KLR)

Court of Appeal
26 August 2019
3,450 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a landowner cannot use judicial review to save a disputed title when a normal civil case can decide the issue instead.

What this practically means

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Executive summary

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This is a single judgment of the Court of Appeal at Nairobi (Ouko, P; Nambuye and Warsame, JJ.A) dismissing Market Plaza Limited's appeal against Odunga J's refusal to grant judicial review orders of certiorari, prohibition and mandamus. The appellant, claiming to be the registered owner of LR No. 209/1855/2, challenged the Registrar of Titles' revocation of its title by Gazette Notice No. 15580 of 26 November 2010, on the ground that the land had originally been reserved as a municipal market and was therefore unavailable for private appropriation. The appellant argued that the revocation was ultra vires, breached its constitutional right to property, and that judicial review was the only efficacious remedy. The respondents maintained that the validity of the title was already in issue in other pending proceedings and that judicial review was discretionary and inappropriate. The Court applied the settled test in United India Insurance vs East African Underwriters for interfering with discretionary decisions, and found none of the grounds for interference established. It endorsed the trial Judge's proportionality assessment balancing the appellant's property rights against the public interest, reaffirmed that judicial review remedies are discretionary and a last resort where an alternative remedy exists, and held that title validity had to be determined in the pending civil suits. The appeal was dismissed with costs to the respondents. The decision binds lower courts on the last-resort character of judicial review and the appellate threshold for disturbing discretionary rulings.

Key legal issues

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01

Threshold for appellate interference with discretionary decisions

Holding

The Court declined to interfere because none of the established grounds for interference were made out; the trial Judge exercised his discretion judiciously.

Reasoning

Applying United India Insurance vs East African Underwriters, the Court examined whether the Judge misdirected himself in law, misapprehended the facts, considered irrelevant or failed to consider relevant matters, or was plainly wrong. Finding no such defect, the Court held it is not within its powers to substitute its own discretion for that of the trial Judge.

p. 4
02

Judicial review as a remedy of last resort

Holding

Judicial review orders are discretionary and ought to be sought only where no suitable alternative remedy exists; where title validity is in dispute, civil proceedings are appropriate.

Reasoning

Relying on Republic vs NEMA and Sanghani Investment Limited, the Court held that where an alternative remedy exists, judicial review will only be granted in exceptional circumstances, and courts must assess the suitability of the alternative remedy to determine the real issue. Here, title validity was pending in other proceedings, so judicial review was inappropriate.

p. 4
03

Public interest and proportionality in conflicts between private property rights and public land use

Holding

The trial Judge properly conducted a proportionality assessment balancing the appellant's constitutional property right against the public interest in land reserved for public use as a municipal market.

Reasoning

The Court endorsed the view that courts are entitled under the Constitution to weigh public or national interests where public and private interests conflict, citing Mureithi vs Attorney General on the public trust doctrine and the Court of Appeal's own precedents applying proportionality, including Kenya Airports Authority vs Mitu-Bell and KNHA vs Shalien Masood Mghanga.

p. 3
04

Constitutionalisation of judicial review

Holding

Judicial review in Kenya now has a constitutional underpinning under Articles 10, 25, 27, 47 and 50, with conventional grounds taking a secondary role to constitutional benchmarks.

Reasoning

The Court acknowledged the interplay between administrative law and constitutional law, noting that the limits of judicial review continue expanding to meet changing conditions, though it cautioned that Nyamu J's pre-2010 expansionist view predates the current constitutional dispensation.

p. 3

Legal principles established

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  • The Court of Appeal will not interfere with a discretionary decision of a judge unless the judge misdirected himself in law, misapprehended the facts, took into account considerations he should not have, failed to take into account considerations he should have, or the decision is plainly wrong
  • Orders for judicial review ought to be sought as a last resort and only in exceptional circumstances where an alternative remedy exists
  • The function of the High Court in judicial review is not to determine the merits of a public body's decision but to examine the manner in which the decision was made
  • A court exercising judicial review jurisdiction may refuse discretionary remedies even where grounds exist, weighing whether the remedy is the most efficacious in the circumstances

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticles 10, 25, 27, 47 and 50
  • Constitution of KenyaArticle 1
  • Registration of Titles ActSections 23(1) and 61
  • Government Lands Act (repealed)Sections 12 and 13

Cases cited (17)

  • O'Reilley and Others vs Mackman and Others
    [1983] UKHL 1
  • Prof. Wangari Maathai & Others vs City Council of Nairobi & 3 Others
    Civil Application No. 321 of 1995
  • United India Insurance Co. Ltd & 2 Others vs East African Underwriters (Kenya) Ltd
    [1985] eKLR
  • Republic vs Kenya Revenue Authority Ex parte Yaya Towers Limited
    [2008] eKLR
  • Ransa Company Ltd vs Manca Francesco & 2 Others
    [2015] eKLR
  • Bahajj Holdings Ltd vs Abdo Mohammed Bahajj & Company Ltd & Another
    Civil Application No. Nai. 97 of 1998
  • Re: National Hospital Insurance Fund Act and Central Organisation of Trade Unions (Kenya)
    Nairobi HCMA No. 1747 of 2004 [2006] 1 EA 47
  • Mbogo vs Shah
    [1968] EA 93
  • AXA General Insurance Ltd & Others vs The Lord Advocate
    [2011] UKSC 46
  • Sporrong and Lonnroth vs Sweden
    (1982) 5 EHRR 35
  • Pressos Compania Naviera SA vs Belgium
    (1995) 21 EHRR 301
  • Mureithi & 2 Others (For Mbari ya Murathimi Clan) vs Attorney General & 5 Others
    Nairobi HCMCA No. 158 of 2005 [2006] 1 KLR 443
  • Elizabeth Wambui Githinji & 27 Others vs Kenya Urban Roads Authority & Others
    Civil Appeal No. 156 of 2013
  • Kenya Airports Authority vs Mitu-Bell Welfare Society & 2 Others
    [2016] eKLR
  • Kenya National Highway Authority vs Shalien Massod Maghal & 5 Others
    [2017] eKLR
  • Sanghani Investment Limited vs Officer in Charge Nairobi Remand and Allocation Prison
    [2007] 1 EA 354
  • Republic vs National Environmental Management Authority
    [2011] eKLR
On appeal from
High Court of Kenya at Nairobi
Miscellaneous JR Application No. 18 of 2011
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution over an appeal from the High Court in judicial review proceedings (Civil Appeal No. 266 of 2017)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Market Plaza Limited v Commissioner for Lands & 3 others [2019] KECA 383 (KLR)", Case Analysis (2019). Civil Appeal No. 266 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/383/eng@2019-08-26

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