Market Plaza Limited v Commissioner for Lands & 3 others [2019] KECA 383 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Threshold for appellate interference with discretionary decisions
The Court declined to interfere because none of the established grounds for interference were made out; the trial Judge exercised his discretion judiciously.
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.
Judicial review as a remedy of last resort
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.
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.
Public interest and proportionality in conflicts between private property rights and public land use
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.
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.
Constitutionalisation of judicial review
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs to the respondents
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v County Government of Nyamira & 2 others; Kerosi (Exparte Applicant) (Judicial Review Miscellaneous Application E002 of 2025) [2025] KEELRC 1772 (KLR)[2025] KEELRC 1772 (KLR)5 Jun 2025
- Republic v Attorney General & another; Kathenge & 3 others (Interested Parties); Kamusina (Exparte Applicant)[2023] KEELC 16236 (KLR)14 Mar 2023applied
- Republic v The Chief Land Registar;Ex Parte Applicant Jennifer Muthoni Gatecha West Pointe Reality Limited (Interested Party) [2022] KEELC 577 (KLR)[2022] KEELC 577 (KLR)24 Mar 2022applied
- Republic v Registrar of Titles, Nairobi Ex parte Ruth Mayoyo & 2 others; New Karen Ventures Limited (Interested Party) [2022] KEELC 855 (KLR)[2022] KEELC 855 (KLR)10 Mar 2022applied
- Republic v National Land Commission & another Ex parte Baker Street Investment Limited [2021] KEELC 503 (KLR)[2021] KEELC 503 (KLR)2 Dec 2021
Cite this brief
#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.