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ELCDismissedJudicial Review Miscellaneous Application (Notice of Motion dated 13th June 2017)· [2018] KEELC 1576 (KLR)

Furncorn Ltd & Solomon Njoroge Kiore in his capacity as a done of Power of Attorney no. IP/A/64940/1) v Cabinet Secretary,( is sued in his capacity as the cabinet secretary), Ministry of Lands, Housing & Urban Development, Chief Land Registrar, Attorney General, Jonathan Munywoki Muli & Shadrack Mbai Mbiu {as the purported Administratrices of the Estate of Sheila Thompson (deceased) (Environment and Land Judicial Review Case 12 of 2017) [2018] KEELC 1576 (KLR)

High Court of Kenya
20 September 2018
1,606 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed the applicants' attempt to revive a revoked power of attorney because they had to finish pending succession cases first.

What this practically means

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Executive summary

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The ex-parte applicants, a limited liability company and its director, obtained leave to apply for judicial review seeking certiorari to quash Gazette Notice No.8684 of 20th November 2015, which revoked and deregistered a special power of attorney (IP/A 64940/1) registered in favour of the second applicant over property LR No.1012/47/2 (IR 97708/1) at Roysambu, Nairobi, and mandamus compelling reinstatement of the registration. The respondents did not participate; the Estate of Sheila Thompson, as interested party, opposed the motion as an abuse of process, contending the applicants obtained administration of the estate of Anthony John Thompson through fraud and that succession proceedings were pending. The court found that the power of attorney had been granted after a consolidated succession ruling of 21st November 2014, and that two succession causes over the estate of Anthony John Thompson remained pending, with an appeal against the ruling. Applying section 9(2) of the Fair Administrative Action Act 2015, the court held that the applicants were required to exhaust the pending succession proceedings before seeking judicial review, and declined to review the deregistration. It further held that even absent the exhaustion bar, the donee was given notice of recall, warned of the consequences, and failed to comply, so the power of attorney stood deregistered; and that the process was fair, judicial review concerning process rather than merits. The application was dismissed with costs to the interested parties.

Key legal issues

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01

Exhaustion of alternative remedies under section 9(2) of the Fair Administrative Action Act

Holding

The court declined to review the deregistration because the pending succession causes, which would resolve the underlying question of entitlement to the suit property, had not been exhausted

Reasoning

The application was filed almost two years after the Fair Administrative Action Act came into force on 17th June 2015. Section 9(2) bars review where remedies under other written law have not been exhausted. Two succession causes (1965 of 2009 and 1788 of 2009) were pending and consolidated, with an appeal pending; these would determine entitlement to the suit property. The underlying dispute is really about who may take out letters of administration for the estate of Anthony John Thompson, which the succession court should resolve first.

p. 4
02

Fairness of the administrative process leading to deregistration

Holding

The process was fair: the donee of the power of attorney was given notice of recall, warned of the consequences of non-compliance, and given reasons for the revocation

Reasoning

By Gazette Notice the donee was given 14 days within which to forward the original power of attorney failing which it would be revoked. He did not comply. Reasons for the revocation were communicated by letter dated 29th December 2016, and there was prior constant correspondence. The court reiterated that judicial review concerns process, not merits, and found the process fair. Even independently of the exhaustion bar, the power of attorney stood deregistered for non-compliance.

p. 4

Legal principles established

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  • A court may not review an administrative action or decision under the Fair Administrative Action Act unless internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted
  • Judicial review is concerned with the process leading to the decision, not the merits of the decision

Court orders

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  1. 1.The ex-parte applicants' application for judicial review is dismissed with costs to the interested parties

Authorities

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Legislation

  • Companies Act
  • Fair Administrative Action Act 2015Section 9(2)
Jurisdiction invoked
Judicial review jurisdiction under the Fair Administrative Action Act 2015, following leave granted on 31st May 2017

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, "Furncorn Ltd & Solomon Njoroge Kiore in his capacity as a done of Power of Attorney no. IP/A/64940/1) v Cabinet Secretary,( is sued in his capacity as the cabinet secretary), Ministry of Lands, Housing & Urban Development, Chief Land Registrar, Attorney General, Jonathan Munywoki Muli & Shadrack Mbai Mbiu {as the purported Administratrices of the Estate of Sheila Thompson (deceased) (Environment and Land Judicial Review Case 12 of 2017) [2018] KEELC 1576 (KLR)", Case Analysis (2018). Judicial Review Miscellaneous Application (Notice of Motion dated 13th June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1576/eng@2018-09-20

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