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ELCDismissedJR No. 35 (Embu)· [2019] KEELC 2294 (KLR)

Republic v County Council of Kirinyaga & another Ex Parte Kiura Gachoki [2019] KEELC 2294 (KLR)

Environment and Land Court
14 June 2019
ECE.C. Cherono
1,332 words in judgment
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The bottom line

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A Kenyan court upheld a county council's decision to split a plot between two brothers, confirming courts can now review whether administrative decisions are proportionate.

What this practically means

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Executive summary

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The Applicant sought an order of certiorari to quash the findings and recommendation of the defunct Kirinyaga County Council dated 14th February 2011, by which the Council resolved to add the 2nd Respondent, Francis Kamau Gachoki, as co-owner of Plot No. 2 Kiandai Market and to sub-divide it into Plot 2A (developed, registered to the 2nd Respondent) and Plot 2B (undeveloped, retained by the Applicant). The Applicant claimed he was allocated the plot in 1963 by the then Embu African District County Council, took possession, and had paid rents and rates since, and that the Councilors' decision was illegal, unconstitutional and a nullity ab initio. The 2nd Respondent, the Applicant's brother, explained that the Applicant had failed to develop the plot within the stipulated period and enlisted him to develop it to prevent repossession; the Council, after hearing both parties and verifying documents, resolved the sub-division. E.C. Cherono, ELC Judge, considered section 7(2) of the Fair Administrative Action Act, which permits courts to review administrative action that is not proportionate to the rights affected, applying the proportionality principles set out in the Kenya National Examinations Council case and R (Daly). The court found that both parties were heard, documents were verified, and the decision balanced the parties' contributions and interests. Holding the Council's decision natural, reasonable and equitable, the Judge dismissed the Notice of Motion dated 10th July 2011 and ordered each party to bear his own costs, given that the parties are brothers.

Key legal issues

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Whether the Council's decision was lawful, reasonable and proportionate

Holding

The decision was lawful and proportionate; both parties were heard, documents verified, and the sub-division fairly reflected the 2nd Respondent's contribution to saving the plot from repossession

Reasoning

The court reviewed the minutes of the Council's Works, Town Planning, Markets and Housing Committee of 10th March 2011, which showed both parties were present and documents were thoroughly verified. The receipts bore the 2nd Respondent's name and he carried out the construction. Under section 7(2) of the Fair Administrative Action Act the court could assess proportionality. The decision balanced the rights and interests of both brothers and was natural and reasonable, especially since the Applicant had never presented an approved development plan since the 1963 allocation.

p. 2

Legal principles established

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  • Judicial review traditionally examines the decision-making process, not the merits, but the Fair Administrative Action Act now permits review where a decision is not proportionate to the interests or rights affected

Court orders

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  1. 1.The Notice of Motion dated 10th July 2011 is dismissed
  2. 2.Each party to bear his own costs of the application

Authorities

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Legislation

  • Fair Administrative Action ActSection 7(2)(i)

Cases cited (2)

  • Republic vs Kenya National Examination Council Ex-Parte H.N.G (Sung as a friend and parent of A.H.N)
    (2016) eKLR
  • R (Daly) v Secretary of State for Home Department
    (2001) 2 AC 532
Jurisdiction invoked
Judicial review jurisdiction under the Law Reform Act and the Fair Administrative Action Act, 2015 (Section 7(2))

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 County Council of Kirinyaga & another Ex Parte Kiura Gachoki [2019] KEELC 2294 (KLR)", Case Analysis (2019). JR No. 35 (Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2294/eng@2019-06-14

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