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ELCDismissedJudicial Review Application - Notice of Motion dated 6th June, 2018· [2019] KEELC 4508 (KLR)

Republic v Machakos Deputy County Commissioner & another Ex parte Maingwa Makoma Mutie [2019] KEELC 4508 (KLR)

High Court of Kenya
22 February 2019
905 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a landowner's challenge because he failed to provide actual evidence, like Gazette Notices and the prior court decision, supporting his claims.

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 decisions of the Machakos Deputy County Commissioner in Minister's Appeals No. 207 of 1996 and 208 of 1996, and mandamus compelling the Respondent to register the Applicant as owner of Plots 2034 and 2035 Kyangala Adjudication Section. The application rested on three grounds: that the Respondent was not gazetted to hear appeals under Section 29(4) of the Land Adjudication Act; that he acted in excess of his mandate by determining ownership rather than a boundary dispute; and that he disregarded a prior High Court decision which the parties had allegedly agreed to adopt. Neither the Respondent nor the Interested Party responded. The court held that the burden lay on the Applicant to produce Gazette Notices proving non-gazettement, and rejected that ground. On the alleged disregard of the High Court decision, the court applied the principle that judicial review concerns the decision-making process, not the merits, and that intervention is warranted where a decision-maker fails to consider relevant matters. Although a prior High Court decision would have been a relevant consideration, it was never exhibited, so the court could not find the Respondent ignored it. The court dismissed the Notice of Motion dated 6th June 2018 with no order as to costs.

Key legal issues

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01

Burden of proving lack of gazettement under Section 29(4) of the Land Adjudication Act

Holding

Rejected - the Applicant failed to prove the Respondent was not gazetted

Reasoning

The Minister may delegate appellate powers by Gazette notice under Section 29(4) of the Land Adjudication Act. A party asserting non-gazettement must avail the Gazette Notices for the relevant period; a bare allegation cannot sustain the ground. The court therefore rejected the first ground without calling on the Respondent, who did not participate.

p. 1
02

Scope of judicial review - process versus merits

Holding

The court does not sit on appeal over the decision-maker; only the process is reviewable

Reasoning

Citing Municipal Council of Mombasa and Republic v Commissioner of Lands Ex-parte Lake Flowers, the court held it reviews the decision-making process, not merits, and intervenes only where there is bad faith, abuse of power or failure to consider relevant matters. Whether the Respondent correctly decided ownership was not for this court.

p. 2
03

Whether the Respondent ignored a High Court decision said to bind the parties

Holding

Unproved - the High Court decision was not exhibited

Reasoning

The Applicant alleged the parties had agreed to adopt a High Court decision which the Respondent disregarded. However, the decision was not among the documents filed. Without it, the court could not conclude the Respondent failed to take into account a relevant consideration, and the application was found unmeritorious.

p. 2

Legal principles established

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  • A party alleging that a decision-maker was not gazetted bears the burden of producing evidence of that fact
  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • A decision of a superior court, if allegedly ignored by an administrative decision-maker, must be exhibited for the reviewing court to find the relevant consideration was overlooked

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 6th June, 2018
  2. 2.No order as to costs

Authorities

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Legislation

  • Land Adjudication ActSection 29(4)

Cases cited (2)

  • 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 of the High Court over the decision of the Machakos Deputy County Commissioner in Land Adjudication appeals (Minister's Appeal No. 207 of 1996 and 208 of 1996) under the Land Adjudication Act

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 Machakos Deputy County Commissioner & another Ex parte Maingwa Makoma Mutie [2019] KEELC 4508 (KLR)", Case Analysis (2019). Judicial Review Application - Notice of Motion dated 6th June, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4508/eng@2019-02-22

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