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ELCDismissedELC MISC. APPL. NO. 51 OF 2017· [2019] KEELC 1515 (KLR)

Dominic M. Matheka v Land Registrar Makueni County; Titus Musyoka Mulungye & another (Interested Parties) [2019] KEELC 1515 (KLR)

Environment and Land Court
3 October 2019
927 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's bid to overturn a boundary decision because he argued the decision was wrong instead of proving the process was flawed.

What this practically means

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Executive summary

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The Ex-parte Applicant sought judicial review orders of certiorari to quash the decision of the Land Registrar Makueni County dated 18th August 2015 fixing the boundary between Land Parcels Mbitini/Iteta/608 and 609, and mandamus compelling the Registrar to determine the boundary afresh in accordance with Section 19 of the Land Registration Act after a fair hearing. The application, anchored on Sections 8 and 9 of the Law Reform Act, Order 53 of the Civil Procedure Rules and Articles 47 and 50(1) of the Constitution, was opposed by the 1st Interested Party, who filed a replying affidavit and submissions, while the 2nd Interested Party (Attorney General) filed submissions without entering appearance. The court, per Mbogo C.G., J, held that judicial review is concerned with the process rather than the merits of a decision. It found that the Applicant's counsel had attacked the merits of the Registrar's decision, an approach appropriate in civil proceedings, and that the Applicant had not demonstrated illegality, irrationality or procedural impropriety. Applying the Court of Appeal's decision in Ransa Company Ltd vs. Manca Francesco & 2 others, the court held that a bare assertion of bias and pre-determination without proof fell short. The Notice of Motion was dismissed with costs to the 1st Interested Party.

Key legal issues

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01

Scope of judicial review - process versus merits

Holding

The Applicant's attack on the merits of the Registrar's boundary decision was misconceived; judicial review challenges only the decision-making process

Reasoning

The court, applying the Court of Appeal's authority in Ransa Company Ltd, held that judicial review is a sui generis and restrictive jurisdiction that principally challenges the process, excessive jurisdiction and technical issues rather than the merits. Counsel for the Ex-parte Applicant had dwelt on the merits of the Registrar's decision, which would only be appropriate in a civil suit. Absent proof of illegality, irrationality or procedural impropriety, the remedies of certiorari and mandamus could not issue.

p. 2
02

Alleged breach of fair hearing under Article 50(1) and Section 19 of the Land Registration Act

Holding

The Applicant's bare assertion that a judgment was passed against him without a hearing, without demonstrating bias, did not establish a breach of natural justice

Reasoning

The 1st Interested Party submitted that the Applicant merely averred bias and pre-determination without demonstrating it, and that all parties were heard as required by law. The court adopted this framing, finding the Applicant had failed to prove the alleged procedural unfairness. The Registrar's decision therefore stood and mandamus to compel a fresh boundary determination could not issue.

p. 2

Legal principles established

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  • Judicial review is concerned with the process by which a decision was made, not the merits of the decision itself

Court orders

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  1. 1.The Notice of Motion dated 4th March 2016 is dismissed
  2. 2.Costs of the application awarded to the 1st Interested Party

Authorities

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Legislation

  • Law Reform Act (Cap. 26)Sections 8 and 9
  • Land Registration ActSections 2 and 19
  • Constitution of Kenya, 2010Articles 47 and 50(1)
  • Civil Procedure RulesOrder 53 Rules 1, 2, 3 and 4

Cases cited (2)

  • Municipal Council of Mombasa vs. R & another
    [2002] eKLR
  • Ransa Company Ltd vs. Manca Francesco & 2 others
    [2015] eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap. 26), Order 53 Rules 1, 2, 3 and 4 of the Civil Procedure Rules, and Articles 47 and 50(1) of the Constitution of Kenya 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, "Dominic M. Matheka v Land Registrar Makueni County; Titus Musyoka Mulungye & another (Interested Parties) [2019] KEELC 1515 (KLR)", Case Analysis (2019). ELC MISC. APPL. NO. 51 OF 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1515/eng@2019-10-03

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