Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedJudicial Review (Notice of Motion dated 26th April, 2018)· [2019] KEELC 3781 (KLR)

Republic v Cabinet Secretary, Ministry of Lands and Housing & 3 others; Samuel Mbithuka Kamwaki(Interested Party); Ex-parte Muema Ikuthu & another [2019] KEELC 3781 (KLR)

Environment and Land Court
5 April 2019
OAO.A. Angote
1,050 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court dismissed a challenge to a land appeal decision because the applicants, having testified, could not prove they were denied a fair hearing.

What this practically means

#

Executive summary

#
The Ex-parte Applicants sought judicial review orders of certiorari to quash a decision of the Deputy County Commissioner, Kisasi Sub-County, conveyed on behalf of the Minister in Minister's Appeal Case No. 256 of 1993, which vested land parcel Mbitini/Kisasi Adjudication Section Plot 51 in the Interested Party, Samuel Mbithuka Kamwaki, and mandamus to compel a re-hearing at which they could call witnesses. The Applicants asserted ancestral acquisition of the land from 1914, prior dismissals of suits in 1971 and 1972, and alleged that the Minister's representative heard only the Interested Party's evidence and denied them the chance to call witnesses, breaching natural justice. The 1st-4th Respondents, through the Attorney General, filed Grounds of Opposition asserting the application contravened Order 53 Rule 2 of the Civil Procedure Rules and Section 9(3) of the Law Reform Act, while the 2nd Respondent deponed that it was the Applicants who failed to avail witnesses. The Interested Party did not respond. The court reiterated that judicial review concerns the decision-making process, not merits, and examined the proceedings before the Minister's representative. It found the 1st Applicant testified and was cross-examined on 25th October, 2016, with no indication he requested to call witnesses, while the Interested Party requested and was permitted to call a witness. Holding that an opportunity to testify satisfied fair hearing requirements, and that the opponent being allowed a witness could not by itself vitiate the proceedings, the court found no evidence of denial of the right to call witnesses and dismissed the Notice of Motion dated 26th April, 2018 with costs on 5th April, 2019 (O.A. Angote, Judge).

Key legal issues

#
01

Whether the rules of natural justice were breached in the Minister's appeal

Holding

The Minister's representative heard the 1st Applicant, who testified and was cross-examined; no request to call witnesses was made, so natural justice was complied with

Reasoning

The court examined the proceedings before the Minister's representative and found that the 1st Applicant testified on 25th October, 2016 and was cross-examined, with no indication he requested to call witnesses. The Interested Party requested and was allowed to call a witness. Absent any letter or record showing denial of the right to call witnesses, the allegation of breach of natural justice failed. Judicial review looks at process, not merits, and the process here was fair.

p. 2

Legal principles established

#
  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • A party given an opportunity to testify cannot claim breach of fair hearing merely because the opponent was allowed to call a witness

Court orders

#
  1. 1.Dismissal of the Notice of Motion dated 26th April, 2018
  2. 2.Costs of the application awarded to the Respondents/Interested Party

Authorities

#

Legislation

  • Civil Procedure RulesOrder 53 Rule 2
  • Law Reform ActSection 9(3)

Cases cited (3)

  • Republic vs. Machakos Deputy County Commissioner, Ex-parte Maingwa Makoma & Another
    Machakos ELC Misc. Application No. 19 of 2018
  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Limited
    Civil Appeal No. 185 of 2001
  • Republic vs. The Commissioner of Lands Ex-parte Lake Flowers Limited
    Nairobi HC Misc. Application No. 1235 of 1998
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and the Law Reform Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Cabinet Secretary, Ministry of Lands and Housing & 3 others; Samuel Mbithuka Kamwaki(Interested Party); Ex-parte Muema Ikuthu & another [2019] KEELC 3781 (KLR)", Case Analysis (2019). Judicial Review (Notice of Motion dated 26th April, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3781/eng@2019-04-05

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