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ELCDismissedJudicial Review Application dated 6/12/2012 (substantive Notice of Motion filed 19th December 2012)· [2014] KEELC 653 (KLR)

Republic v Permanent Secretary, Ministry Of Housing & another Ex-Parte Eustacia Wachira Macharia (Suing As The Legal Representative Of The Estate Of Florence Warundu Wachira (Deceased) [2014] KEELC 653 (KLR)

High Court of Kenya
14 November 2014
3,842 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's High Court dismissed a tenant's bid to challenge eviction by judicial review, ruling that landlord-tenant disputes belong in private law, not public law.

What this practically means

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Executive summary

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Eustacia Wachira Macharia, administrator of the estate of his late wife Florence Warundu Wachira, a former health worker, sought judicial review orders of certiorari, prohibition and mandamus together with declarations against the Permanent Secretary, Ministry of Housing and the District Building Surveyor following a vacation notice dated 8th August 2012 and a forceful eviction of 16th October 2012 from Government House No. MG 91 KR on LR Nyeri Municipality Block 1/1456. The applicant contended that the deceased had been allotted the house in 2000 as a tenant purchaser under a government scheme to sell non-strategic houses, paid a 10% deposit and installments, and that the respondents acted unreasonably, maliciously and in breach of his legitimate expectation by evicting him on the mistaken premise that he was not a civil servant. The respondents, through a replying affidavit of Lucy Gathata, County Housing Director, maintained that the intended sale was cancelled by a notice of 28th July 2008 published in the Daily Nation on 30th July 2008 and communicated by letter, that government houses are for civil servants, and that the applicant was in rent arrears. The court framed three issues: whether there was a valid sale, whether the eviction procedure was proper, and whether the orders sought could issue. It found the cancellation notice sufficiently served by print media as substituted service, stood unchallenged, so ownership reverted to government; an administrator could have no legitimate expectation greater than the deceased's. Although the notice was short and the eviction irregular, the dispute was purely a private-law landlord-tenant contractual matter outside judicial review. All orders were refused; the application was dismissed with costs to the respondents.

Key legal issues

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01

Ownership of the suit property - whether a valid sale to the deceased existed

Holding

The sale was validly cancelled; the notice of cancellation was sufficiently served by print media and by letter, and stood unchallenged, so ownership reverted to the government

Reasoning

The court confirmed the Daily Nation notice of 30th July 2008 and held that publication amounted to substituted service, akin to service by advertisement under Ord 5 Rule 17(4) CPR 2010. The deceased also received a 2011 letter of cancellation. The applicant, as administrator, could assert no rights beyond the deceased's, and the cancellation decision was never challenged, being the genesis of the action.

p. 4
02

Whether the eviction procedure was lawful and whether judicial review remedies lie

Holding

Although the notice may have been short and the eviction irregular, the dispute is purely a private-law contractual/landlord-tenant matter to which judicial review does not apply

Reasoning

The relationship between the parties, after the unchallenged cancellation of the tenant purchase scheme, was landlord and tenant. The remedies of certiorari, prohibition and mandamus under the Law Reform Act follow the English position as at 1938 and apply only to public-duty decisions, not private contractual disputes; the appropriate avenue is private law.

p. 5
03

Whether the judicial review and declaratory orders sought could issue

Holding

No - all orders were refused: the review orders were discretionary and futile, and declarations are not available under sections 8 and 9 of the Law Reform Act

Reasoning

Following the Gathenji line of authority on the scope of certiorari, prohibition and mandamus, and Pareno on discretion, the court found quashing the vacation notice would not achieve the applicant's objective of ownership, and mandamus would compel reinstatement as a mere rent-paying tenant in arrears. Declaratory orders fall outside the Law Reform Act remedies, a gap the judge noted pending legislative amendment.

p. 6

Legal principles established

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  • Judicial review remedies are unavailable for disputes that are purely private or domestic in character, such as landlord-tenant contractual disputes; certiorari, prohibition and mandamus only lie to impugn decisions made in the performance of a public duty
  • Service by advertisement in the print media constitutes valid substituted service recognized in law
  • A grant of representation confers no greater rights than the deceased held; no legitimate expectation can arise in favour of an administrator that the deceased did not possess
  • Judicial review orders are discretionary and may be denied where grounds for denial exist, including where their issuance would be futile

Court orders

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  1. 1.The application (substantive notice of motion) is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Law Reform ActCap 26 Laws of Kenya, sections 8, 8(1), 8(2) and 9
  • Civil Procedure Rules 2010Order 5 Rule 17(4); Order 53 rule 1(1) and 1(2)
  • Administration of Justice (Miscellaneous Provisions) Act 1938 (UK)sections 7 and 31 (as referenced via s.31 of the Supreme Court Act 1981 in discussion)
  • Supreme Court Act 1981 (UK)section 31(1) and 31(2)

Cases cited (11)

  • Nyongesa & 4 Others -Vs- Egerton University College
    (1990) KLR 693
  • Council Of Civil Servants Union & Others Vs Minister Of The Civil Service
    (1983) 3 ALL ER 936
  • Maina vs Nairobi Liquor Licensing Court
    (1973) EA 319-321
  • Kenya National Examinations Council -Vs- Republic Exparte Gathenji Njoroge & 9 others
    (1997) eKLR
  • Jitesh Shah & Highland Textiles Limited V Nairobi District Lands Registrar
    [2013] eKLR
  • Charles Muya Kabira v Jackson Sanko Kapande
    [2008] eKLR
  • Republic vs. Judicial Service Commission ex parte Pareno
    [2004] 1 KLR 203-209
  • Sanghani Investment Limited vs. Officer in Charge Nairobi Remand and Allocation Prison
    [2007] 1 EA 354
  • Captain Geoffrey Kujoga Murungi Vs Attorney General
    Misc Civil Application No. 293 of 1993
  • Republic V Njeru Githae Minister Of Finance & 2 Others Exparte Jackson Gichuki & Another
    [2013] eKLR
  • R V British Broadcasting Corporation ex p. Lavelle
    (1983) 1 W.L.R. 23
Jurisdiction invoked
Law Reform Act Cap 26 Laws of Kenya, sections 8 and 9 (judicial review orders of Certiorari, Prohibition and Mandamus); Order 53 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Permanent Secretary, Ministry Of Housing & another Ex-Parte Eustacia Wachira Macharia (Suing As The Legal Representative Of The Estate Of Florence Warundu Wachira (Deceased) [2014] KEELC 653 (KLR)", Case Analysis (2014). Judicial Review Application dated 6/12/2012 (substantive Notice of Motion filed 19th December 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/653/eng@2014-11-14

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