Republic v Cabinet Secretary, Ministry of Lands and Housing & 2 others; Josphat Mwanzia & 3 others (Interested Parties); Ex parte Applicant: Musyimi Kilonzo [2020] KEELC 3050 (KLR)
The bottom line
#Kenya's Lands Minister lost a land appeal ruling because the court held that ignoring an earlier binding judgment made the decision unlawful, and the matter must now be reheard fresh.
What this practically means
#Executive summary
#Key legal issues
#Scope of judicial review under the Fair Administrative Action Act
The traditional process-focused scope of judicial review has been expanded by section 7(2)(l) of the Fair Administrative Action Act, which permits proportionality review entailing consideration of merits
The court traced the traditional position that judicial review concerns the decision-making process, citing Kunste Hotel and Chief Constable of North Wales Police v Evans. It then held that section 7(2)(l) of the Fair Administrative Action Act introduces proportionality as a ground of review, inviting greater intensity of review and evaluation of the substantive merits of the decision.
Whether the Minister's decision ignoring the 1973 Magistrate's Court judgment was irrational and illegal
The 1st Respondent's failure to refer to the District Magistrate's decision and sketch map, which clearly demarcated the parties' land, rendered the decision irrational, illegal and disproportionate
The 1973 judgment, in which the Magistrate visited the land and drew a sketch map confining the deceased to one side of Katuta stream, was a relevant factor and binding on the parties, never having been appealed. All issues before the Minister had been raised in that case; the Minister instead relied on the position of the deceased's house, an irrelevant factor, and erred in finding Mbatha Ndolo was coerced into surrendering parcel 2331.
Appropriate remedy
Certiorari and prohibition issue, but rather than mandamus compelling registration, the Appeals are remitted for re-hearing by a different Deputy County Commissioner
Following Suchan Investment, the reviewing court cannot substitute its own decision for that of the administrator; it can only remit. The court therefore quashed the impugned decisions and directed the Cabinet Secretary to appoint another Deputy County Commissioner, other than the one who heard the Appeals, to re-hear them.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision
- Section 7(2)(l) of the Fair Administrative Action Act expands judicial review to include proportionality, permitting scrutiny of the substantive merits
- A reviewing court may quash and remit, but not substitute its own decision for that of the administrator
Court orders
#- 1.Order of certiorari quashing the 1st Respondent's Judgment issued on 28th June, 2017 in Land Adjudication Appeal No. 228 of 2007 (parcels 2330, 2331 Kangonde/Masinga) and Appeal No. 77 of 2007 (parcel 2441 Masinga/Kangonde)
- 2.Order of prohibition restraining the 2nd Respondent from registering the Interested Parties, the Administrator of the Estate of the late Mwanga Muthoka or any other person as lawful proprietors of parcels 2441, 2330 and 2331
- 3.The Cabinet Secretary in charge of Lands to appoint another Deputy County Commissioner to re-hear and determine the two Appeals
- 4.Each party to bear his own costs
- Jurisdiction invoked
- Statutory judicial review under the Law Reform Act and section 7(2)(l) of the Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Cabinet Secretary, Ministry of Lands and Housing & 2 others; Josphat Mwanzia & 3 others (Interested Parties); Ex parte Applicant: Musyimi Kilonzo [2020] KEELC 3050 (KLR)", Case Analysis (2020). Judicial Review (Notice of Motion dated 6th December, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3050/eng@2020-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.