Republic v Machakos Deputy County Commissioner & another Ex parte Maingwa Makoma Mutie [2019] KEELC 4508 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Burden of proving lack of gazettement under Section 29(4) of the Land Adjudication Act
Rejected - the Applicant failed to prove the Respondent was not gazetted
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.
Scope of judicial review - process versus merits
The court does not sit on appeal over the decision-maker; only the process is reviewable
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.
Whether the Respondent ignored a High Court decision said to bind the parties
Unproved - the High Court decision was not exhibited
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.
Legal principles established
#- 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
#- 1.Dismissal of the Notice of Motion dated 6th June, 2018
- 2.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.