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ELCDismissedJudicial Review Application (Notice of Motion dated 31st October, 2017)· [2018] KEELC 1122 (KLR)

Kising’u Kinyili v Ministry of Lands and Physical Planning & another [2018] KEELC 1122 (KLR)

High Court of Kenya
26 October 2018
OAO.A. ANGOTE
824 words in judgment
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The bottom line

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The High Court in Machakos dismissed a landowner's judicial review challenge, confirming that courts review how the Lands Minister decided, not whether the decision was right.

What this practically means

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Executive summary

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The ex-parte Applicant sought judicial review reliefs by Notice of Motion dated 31st October, 2017, namely a stay of execution, an order of certiorari quashing the Minister of Lands' decision granting Plot Number Machakos/Katangi/866 to the Interested Party, a declaration that the plot belongs to him, and costs. The Applicant claimed the land was acquired by his father in 1952, that he was registered in 1982, and that the Land Adjudication Committee and Land Arbitration Board decided disputes in his favour before the Minister, on appeal by Gerald Musangi, allowed the appeal 'without any evidence'. The Interested Party opposed, contending that judicial review is concerned with process rather than merits, that the Minister's decision is final, and that the application was in effect an untenable appeal. The court held that judicial review examines only the decision-making process, not the merits, applying Municipal Council of Mombasa vs Republic, ex-parte Umoja Consultants Limited. The record showed both parties were heard by the Minister's representative, neither called witnesses, and there was no evidence that the Minister considered irrelevant matters or acted ultra vires. The Applicant's grievance that the Minister overturned the Adjudication Committee and Arbitration Board decisions was a merits complaint outside judicial review. The Notice of Motion was dismissed with costs on 26th October, 2018.

Key legal issues

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01

Scope of judicial review versus merit appeal

Holding

The Applicant's complaint that the Minister overturned decisions in his favour is a merits grievance outside the ambit of judicial review

Reasoning

The court applied the settled principle that judicial review examines only the lawfulness of the process, namely whether affected persons were heard and whether relevant or irrelevant matters were considered. The record showed both parties were heard by the Minister's representative, no witnesses were called by either side, and the Minister decided on the evidence before him. The court cannot fault a decision merely because it reversed earlier tribunal findings.

p. 2
02

Fair hearing before the Minister

Holding

Both parties were heard; there was no denial of natural justice

Reasoning

The proceedings before the Minister showed that the Applicant and the Interested Party were both heard by the Minister's representative, and neither called witnesses. The Minister made factual findings, including that the disputed land was bushy while parcel 866 was well demarcated and that the Interested Party had purchased the suit land. Absent evidence of procedural unfairness or irrelevant considerations, the decision could not be quashed.

p. 2

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • A judicial review court cannot act as a court of appeal over the decision under review

Court orders

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  1. 1.The Notice of Motion dated 31st October, 2017 is dismissed with costs

Authorities

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Cases cited (1)

  • Municipal Council of Mombasa vs Republic, ex-parte Umoja Consultants Limited
    Civil Appeal No. 185 of 2001
Jurisdiction invoked
Judicial review jurisdiction of the High Court over the decision of the Minister of Lands

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kising’u Kinyili v Ministry of Lands and Physical Planning & another [2018] KEELC 1122 (KLR)", Case Analysis (2018). Judicial Review Application (Notice of Motion dated 31st October, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1122/eng@2018-10-26

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