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ELCDismissedNotice of Motion dated 20th July, 2018· [2019] KEELC 2803 (KLR)

Munyithya Masyuko Nzavi v Deputy County Commissioner Kyuso Sub-County & 5 others; Manzi Kavoi Nguilu (Interested Party) Ex Parte Munyitha Masyuko Nzavi [2019] KEELC 2803 (KLR)

Environment and Land Court
21 June 2019
893 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a landowner's attempt to overturn a government land decision because he had no evidence the official acted in bad faith.

What this practically means

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Executive summary

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The Ex-parte Applicant sought judicial review orders of prohibition and certiorari to quash the decision of the Deputy County Commissioner, Kyuso Sub-County (acting for the Cabinet Secretary, Ministry of Lands, Housing and Urban Development) in Land Adjudication Appeal No. 63 concerning Ngaaie Adjudication Section No. 3112. The Applicant contended that the 1st Respondent heard the appeal on 27th November, 2017, orally pronounced a judgment ('Go and live the way you have been living'), and later issued a written judgment dated 22nd March, 2018 which differed to the Applicant's detriment, evidencing bad faith, dishonesty, breach of natural justice and excess of jurisdiction. The Respondents did not file responses and the motion proceeded by written submissions. The court held that judicial review concerns the decision-making process rather than the merits, and that while dishonesty, unreasonableness and bad faith are grounds for certiorari, there was no evidence that the 1st Respondent acted in such a manner. The proceedings did not show that any decision was delivered on 27th November, 2017; the only decision was that dated 22nd March, 2018 dismissing the appeal. Consequently, the 1st Respondent neither acted ultra vires nor in bad faith, and the Notice of Motion dated 20th July, 2018 was dismissed with no order as to costs. Judgment delivered at Machakos on 21st June, 2019 by O.A. Angote, Judge.

Key legal issues

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01

Whether the 1st Respondent delivered two conflicting judgments

Holding

No evidence supported the claim that a decision was delivered on 27th November, 2017; the only decision was that dated 22nd March, 2018

Reasoning

The court perused the proceedings before the Minister and found that although the 1st Respondent heard the parties on 27th November, 2017, the record did not show that any decision was delivered on that date. The only decision on record was the judgment dated 22nd March, 2018 dismissing the Applicant's appeal. The alleged oral pronouncement was unsupported by evidence.

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02

Whether the 1st Respondent acted dishonestly, in bad faith or ultra vires

Holding

The 1st Respondent neither acted ultra vires nor in bad faith

Reasoning

While counsel correctly submitted that dishonesty, unreasonableness and bad faith attract certiorari, the court found no evidence before it establishing that the 1st Respondent acted in that manner when hearing the appeal and delivering the decision of 22nd March, 2018. In the absence of proof of bad faith, the application failed.

p. 2

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • Dishonesty, unreasonableness and bad faith by a decision maker are grounds for granting certiorari

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 20th July, 2018
  2. 2.No order as to 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 (orders of prohibition and certiorari) under the Law Reform Act and Order 53 of the Civil Procedure Rules

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, "Munyithya Masyuko Nzavi v Deputy County Commissioner Kyuso Sub-County & 5 others; Manzi Kavoi Nguilu (Interested Party) Ex Parte Munyitha Masyuko Nzavi [2019] KEELC 2803 (KLR)", Case Analysis (2019). Notice of Motion dated 20th July, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2803/eng@2019-06-21

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