Stephen Tarayia Marasua v Mariam Alwi Hussein & 3 others [2019] KEELC 3991 (KLR)
The bottom line
#A Kajiado court dismissed a landowner's attempt to overturn a Magistrate's judgment through judicial review, confirming appeals—not judicial review—are the right remedy.
What this practically means
#Executive summary
#Key legal issues
#Whether the Magistrates' Court had jurisdiction to hear and determine PMCC No. 290 of 2013
The Magistrate acted within jurisdiction; the Practice Directions allowed Magistrates' Courts to continue hearing land matters within their pecuniary jurisdiction despite the repeal of the Magistrates' Court Act
The court relied on the Practice Directions on Proceedings in the Environment and Land Courts, paragraphs 7 and 8, which provided that Magistrates' Courts shall continue to hear and determine land cases within their pecuniary jurisdiction, including matters transferred from the defunct District Land Disputes Tribunals. The judgment records that the matter proceeded to full hearing with sufficient service and was determined on its merits.
Whether the Applicant merits judicial review orders
No - the Applicant should have appealed or sought to set aside the judgment; judicial review concerns process, and no procedural impropriety was shown
Applying Municipal Council of Mombasa v Republic & Umoja Consultants Ltd, the court held that judicial review examines the decision-making process, not merits. The judgment showed service was effected and natural justice observed. The Applicant's grievance about the outcome was an appellate matter. The application was also found to be an abuse of court process.
Exhaustion of alternative remedies under the Fair Administrative Action Act
The Applicant did not exhaust available remedies of appeal or review before resorting to judicial review
The court cited Section 9(2) of the Fair Administrative Action Act, which bars a court from reviewing an administrative action unless internal mechanisms for appeal or review and all remedies available under other written law are first exhausted. The Applicant had not appealed or sought to set aside the Magistrate's decision, so the judicial review application was premature and improper.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision
- Judicial review remedies are not a substitute for an appeal or an application to set aside a judgment
- Subordinate courts retain jurisdiction over land matters within their pecuniary jurisdiction per the Practice Directions on Environment and Land Court proceedings
Court orders
#- 1.Dismissal of the Notice of Motion dated 17th December, 2014 and filed on 6th January, 2015
- 2.Costs of the application to the Respondents
- Jurisdiction invoked
- Articles 22, 48 and 50 of the Constitution; Environment and Land Court Act 2012; Order 53 Rule 1 of the Civil Procedure Rules 2010; Section 8 of the Law Reform Act Cap 26
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Tarayia Marasua v Mariam Alwi Hussein & 3 others [2019] KEELC 3991 (KLR)", Case Analysis (2019). Judicial Review Misc. No. 79 of 2017 (Formerly Machakos ELC JR No. 175 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3991/eng@2019-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.