Republic v Attorney General & 3 others Ex Parties;Fredrick Wekesa Machasio & another Alexander Mukhwana Machasio & 8 others (Interested Parties) [2020] KEELC 986 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Amenability of the Assistant County Commissioner's letter to certiorari
The letter was a request, not an order, and therefore doubtful as a fit subject for quashing by certiorari
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.
Whether judicial review can determine ownership of land
No - the Applicants were really litigating ownership of the suit land, which lies outside the judicial review forum
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.
Discretionary nature of certiorari and the most efficacious remedy
Even though the cancellation without a hearing offended natural justice, certiorari was refused as the dispute is best determined by a civil suit
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.
Legal principles established
#- 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
#- 1.The application for judicial review is dismissed
- 2.There shall be no orders as to costs
- Jurisdiction invoked
- Judicial review jurisdiction (Order 53 Civil Procedure Rules; certiorari and mandamus)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.