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ELCDismissedJudicial Review Application filed 21st July 2020 (leave granted 29th June 2020)· [2020] KEELC 986 (KLR)

Republic v Attorney General & 3 others Ex Parties;Fredrick Wekesa Machasio & another Alexander Mukhwana Machasio & 8 others (Interested Parties) [2020] KEELC 986 (KLR)

Environment and Land Court of Kenya
15 October 2020
2,599 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to use judicial review to settle a family land dispute, directing the parties to file an ordinary civil suit instead.

What this practically means

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Executive summary

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The Applicants, sons of Gabriel Mumela Machasio, sought certiorari to quash a letter dated 11th September 2019 by the Assistant County Commissioner Webuye instructing cancellation of consents for the sub-division of land parcel Ndivisi/Muchi/2111 (registered in their father's name following a Court of Appeal judgment) and the subsequent cancellation of titles Ndivisi/Muchi/10442, 10443 and 10444 issued to them, plus an order in the nature of mandamus compelling registration of those parcels in their names. Nine of their siblings, including the father, were joined as Interested Parties and opposed the application, alleging fraudulent sub-division. The court, per Boaz N. Olao J, applied the settled principles that judicial review concerns the decision-making process rather than the merits, and that grounds for review are illegality, irrationality and procedural impropriety. It held that the Assistant County Commissioner's letter was a request rather than an order and disclosed no reviewable impropriety. It accepted that the cancellation of titles without a hearing offended natural justice, Section 79 of the Land Registration Act, Section 4(3) of the Fair Administrative Action Act and Article 47 of the Constitution, but held that the Applicants were really litigating ownership of the land, a dispute unsuitable for judicial review and best determined in a civil suit. Certiorari and mandamus being discretionary remedies, the court declined to grant them. The application was dismissed with no orders as to costs, the parties being a father and his children.

Key legal issues

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01

Amenability of the Assistant County Commissioner's letter to certiorari

Holding

The letter was a request, not an order, and therefore doubtful as a fit subject for quashing by certiorari

Reasoning

The letter of 11th September 2019 merely requested the Land Registrar to cancel consents and mutations 'until I arbitrate the matter'. It did not compel the Registrar to act, and it would be superfluous to quash both that letter and the County Surveyor's letter of 26th November 2019. No illegality, irrationality or procedural impropriety was found in it.

p. 4
02

Whether judicial review can determine ownership of land

Holding

No - the Applicants were really litigating ownership of the suit land, which lies outside the judicial review forum

Reasoning

Relying on the Court of Appeal in R. v. Chairman Amagoro Land Disputes Tribunal, the court held that judicial review deals only with process, not merits. Where an applicant uses judicial review to determine contested matters of fact and the merits of a dispute, the court lacks jurisdiction and leaves the parties to a civil suit.

p. 4
03

Discretionary nature of certiorari and the most efficacious remedy

Holding

Even though the cancellation without a hearing offended natural justice, certiorari was refused as the dispute is best determined by a civil suit

Reasoning

The court acknowledged that the Land Registrar had no jurisdiction to cancel titles, and that natural justice and Section 4(3) of the Fair Administrative Action Act required a hearing. However, judicial review being discretionary, the court weighed whether the remedy would serve a purpose and found that the underlying dispute over sharing the land would best be determined through a civil suit, not certiorari.

p. 5

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits or private rights; where the dispute is essentially one of ownership, the parties must ventilate it in an ordinary civil suit
  • Certiorari is a discretionary remedy which the Court may refuse even where grounds exist, if it is not the most efficacious remedy
  • An administrative action adversely affecting a person's rights requires an opportunity to be heard

Court orders

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  1. 1.The application for judicial review is dismissed
  2. 2.There shall be no orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 2
  • Land Registration ActSection 79
  • Fair Administrative Action ActSection 4(3)
  • Constitution of Kenya 2010Article 40
  • Constitution of Kenya 2010Article 47
  • Constitution of Kenya 2010Article 50
  • Constitution of Kenya 2010Article 47(2)

Cases cited (5)

  • Municipal Council of Mombasa v. Republic & Umoja Consultants Ltd
    C.A Civil Appeal No 185 of 2001
  • Commissioner of Lands v. Kunste Hotel Ltd
    1997 eKLR
  • Pastoli v. Kabale District Government Council & Others
    2008 2 E.A 300
  • R. v. Chairman Amagoro Land Disputes Tribunal & Another Ex-Parte Paul Mafwabi Wanyama
    C.A Civil Appeal No 41 of 2013 [2014] eKLR
  • Sanghani Investment Ltd v. Officer-in-Charge Nairobi Remand and Allocation Prison
    2007 1 E.A 354
Jurisdiction invoked
Judicial review jurisdiction (Order 53 Civil Procedure Rules; certiorari and mandamus)

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 Attorney General & 3 others Ex Parties;Fredrick Wekesa Machasio & another Alexander Mukhwana Machasio & 8 others (Interested Parties) [2020] KEELC 986 (KLR)", Case Analysis (2020). Judicial Review Application filed 21st July 2020 (leave granted 29th June 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/986/eng@2020-10-15

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