Odhiambo & another (Appealing as representatives of the Estate of the late Jeftha George Odhambo Dosio) v National Land Commission
The bottom line
#Kenya's Court of Appeal ruled that a judge reviewing a land decision must examine only how it was made, not who owns the land, and ordered a retrial.
What this practically means
#Executive summary
#Key legal issues
#Scope of judicial review - process versus merits
The ELC misdirected itself by making a finding that there was nothing on the record to show the appellants or the deceased owned the suit land; that went into the merits of the decision-making process, which is outside the province of judicial review.
Relying on Municipal Council of Mombasa v Republic (Umoja Consultants Ltd), the court reiterated that a review court examines only how the decision was arrived at - jurisdiction, hearing of affected persons, relevant considerations - and must not evaluate the sufficiency of evidence supporting the decision. The ELC's ownership finding was therefore a serious misdirection warranting appellate interference.
Burden of demonstrating procedural fairness in judicial review
The burden lay on the National Land Commission to demonstrate through evidence that it followed a fair process; the Commission filed no responses and did not participate at trial, so there was no evidential basis for the ELC's conclusions, which it wrongly attempted to draw from the Gazette Notice alone.
The court held that the process adopted by the respondent could not be discerned by examining the Gazette Notice presented by the appellants. The respondent's total non-participation meant there was no demonstration of due process before the ELC, and consequently no basis upon which the ELC could have arrived at the determination it made.
Directions on service at the leave stage and non-joinder
At the interlocutory leave stage the judge should have directed the ex parte applicants to serve all parties likely to be adversely affected; failure to direct such service was as much the court's error as the appellants', and the ELC could not raise non-joinder as a surprise in the judgment.
The court explained that an application for leave is interlocutory, heard in chambers ex parte, and the judge gives directions on grant of leave, stay, and service. The court had a window at that stage to require service on all affected parties. Raising non-joinder for the first time in the judgment deprived the appellants of the opportunity to remedy the situation.
Principles for interfering with the exercise of discretion by a trial court
The appeal challenged the exercise of the trial ELC's discretion; the settled Mbogo v Shah principles applied, and the court found serious flaws and misdirection rendering the decision plainly wrong.
Applying Mark William Trevor Price and Mbogo v Shah, the court asked whether the ELC misdirected itself, acted on matters it should not have, or failed to consider matters it should have. Finding the ELC went into the merits, drew conclusions without evidence, and raised non-joinder as a surprise, the court concluded the decision was plainly wrong and ordered a retrial.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong, because of misdirection, acting on matters it should not have, or failing to consider matters it should have, arriving at a wrong conclusion.
- Judicial review is concerned only with the decision-making process, not the merits of the decision; a review court is not entitled to act as a court of appeal over the decider.
- In judicial review, the burden lies on the body under scrutiny to establish through evidential demonstration that it followed a due, fair, reasonable and procedurally fair process.
- At the leave stage of a judicial review application, the judge should direct service on all parties likely to be adversely affected by the orders sought; a court cannot fault a party for non-joinder for the first time in the judgment.
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the ELC delivered on 30th July 2019 and any consequential orders or decrees arising thereto are set aside
- 3.In substitution thereof, a re-trial of the Judicial Review application is ordered before any ELC Judge, except Olola, J. who heard the matter
- On appeal from
- Environmental and Land Court at Malindi
- ELC Judicial Review No. 3 of 2018
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction (no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo & another (Appealing as representatives of the Estate of the late Jeftha George Odhambo Dosio) v National Land Commission", Case Analysis (2022). Civil Appeal 11 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/635/eng@2022-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.