Ephraim Muriuki Wilson & 3 others v The National Land Commission & 8 others

Leave to apply for judicial review is discretionary but must be exercised judiciously and justly. The applicant need only show, without an in-depth inquiry, an arguable case fit for further investigation at a full inter partes hearing. Here the impugned decision of the NLC was administrative and amenable to judicial review; the complaints about lack of hearing, procedure and expired mandate raised arguable public-law issues fit for substantive hearing. The Judge's refusal of leave was therefore an erroneous exercise of discretion warranting appellate interference.

The earlier Nairobi judicial review (No. 12 of 2017) sought to quash the NLC's decision to proceed with reviewing the titles and to stop the hearings. The present application sought to quash the decision revoking the titles made after the hearings concluded. Since the two proceedings attacked different decisions, the elements of res judicata were not met, and the learned Judge erred in finding the application barred.

The appellants were challenging the jurisdiction of the NLC, a public body acting in its administrative capacity, including allegations that its statutory mandate had expired. Such a challenge falls within the realm of judicial review rather than a civil suit or statutory appeal. The existence of issues of excess of jurisdiction and ultra vires action meant the leave application raised legitimate public-law questions that could not be deflectd on exhaustion grounds at the leave stage.

As a first appeal, the court must re-consider and re-evaluate the evidence and arrive at its own conclusions on fact and law, departing from the trial decision only where it is based on no evidence or wrong principles. Because the trial court had determined only the leave question, findings on the appellants' substantive complaints (natural justice, ultra vires, mandate) would be dispositive of matters not heard below, and were therefore eschewed.