Scorpion Properties Limited v Nairobi County Governor (Mike Mbuvi – Sonko) & another [2020] KEELC 592 (KLR)
The bottom line
#Kenya's High Court refused to hear Scorpion Properties' judicial review case, ruling that a land ownership fight belongs in a civil suit, not judicial review proceedings.
What this practically means
#Executive summary
#Key legal issues
#Whether there existed a reviewable public-law decision converting the suit property into a fire station
No decision capable of judicial review was established; the 1st respondent's conduct, if unauthorised, was mere trespass remediable in a civil suit.
The only evidence of the alleged decision was a video clip of the 1st respondent's visit to the property with fire engine trucks. In the video the 1st respondent said the property was reserved for a fire station and that he was evicting illegal occupants. The court held that an unauthorised entry coupled with a declaration of repossession was not a decision made in exercise of statutory or constitutional powers requiring a hearing.
Whether a disputed question of land ownership can be determined in judicial review proceedings
No; judicial review is concerned with the decision-making process, not contested questions of fact over title, which require viva voce evidence in a civil suit.
There was a long-standing ownership dispute over the suit property, listed in the Ndungu Report as irregularly allocated public land, and a pending civil suit (Nairobi HCCC No. 2156 of 2007) to which both the applicant and the 2nd respondent were parties. Relying on Ephrahim Muriuki Wilson and Kisimani Holdings, the court held that ownership issues cannot be adjudicated in judicial review and the applicant should have litigated in the pending civil suit.
Whether the applicant demonstrated a prima facie case warranting the discretionary grant of leave
The applicant failed to demonstrate a prima facie case, and the court declined to exercise its discretion to grant leave.
The court recited the arguable-case test from Njuguna v Minister for Agriculture and the purpose of the leave stage, and noted that judicial review remedies are discretionary. Because no reviewable decision existed and the application sought to litigate a title dispute, the applicant failed to establish a prima facie case of violation of its public law rights.
Legal principles established
#- The test for grant of leave to apply for judicial review is whether there is an arguable case, without examining the matter in depth.
- Judicial review is a discretionary remedy and a court may refuse it even where grounds exist, particularly where it is not the most efficacious remedy.
- The High Court cannot resolve a land ownership dispute disguised as a judicial review application.
Court orders
#- 1.The applicant's Chamber Summons application dated 24th October, 2018 is dismissed
- 2.Each party will bear its own costs
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (Fair Administrative Action / leave stage under order 53 of the Civil Procedure Rules; no specific provision quoted in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v County Government of Narok & another; Ochweri (Exparte Applicant)[2023] KEELC 20336 (KLR)4 Oct 2023
Cite this brief
#Cite this brief
Caselaw, "Scorpion Properties Limited v Nairobi County Governor (Mike Mbuvi – Sonko) & another [2020] KEELC 592 (KLR)", Case Analysis (2020). Chamber Summons application dated 24th October, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/592/eng@2020-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.