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ELCDismissedJudicial Review Application (Notice of Motion dated 3rd August, 2018)· [2020] KEELC 3498 (KLR)

Republic v Deputy County Commissioner Kitui Central Sub-County; Muindi Kimweli (Deceased) & another (Interested Parties) Ex Parte Munuve Kolu (Deceased) & another [2020] KEELC 3498 (KLR)

High Court of Kenya
21 February 2020
OAO.A. Angote
2,377 words in judgment
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The bottom line

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The High Court dismissed Munuve Kolu's attempt to overturn a land appeal decision because he failed to provide the 1961 case records his entire complaint depended on.

What this practically means

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Executive summary

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The Ex-parte Applicant sought an order of certiorari to quash the decision of the Deputy County Commissioner-Kitui Central Sub-County dated 21st February, 2018 in Appeals to the Minister Nos. 39 of 1987 and 215 of 1987, concerning land parcels Kyangwithya/Kaveta/985 and 991 in Kaveta Adjudication Section, in a dispute between the Applicant's father (Munuve Kolu) and the Interested Party's father (Muindi Kimweli). The Applicant contended that the Respondent erred in finding that the suit land was the subject matter of Syongila African Court Case No. 24 of 1961, that he ignored the findings of the Land Committee and Arbitration Board (which had found in the Applicant's favour), and that he failed to analyse the history of the land. The Interested Party opposed, arguing that the application attacked the merits rather than the process and that the 1961 case awarded the land to his father. The court first reviewed the law on the scope of judicial review, applying the Wednesbury grounds as restated in Municipal Council of Mombasa and Pastoli, and noting the Court of Appeal's decision in Suchan Investment that proportionality under section 7(2)(l) of the Fair Administrative Action Act permits greater merit consideration. However, because the Applicant failed to exhibit the proceedings and judgment in Case No. 24 of 1961, the foundational material against which the Respondent's findings could be tested, the court could not determine whether the Minister misdirected himself, and any finding would be speculation. The Notice of Motion dated 3rd August, 2018 was dismissed with costs on 21st February, 2020.

Key legal issues

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01

Scope of judicial review - process versus merits

Holding

Judicial review is concerned with the decision-making process and not the merits, though proportionality under section 7(2)(l) of the Fair Administrative Action Act permits greater merit consideration

Reasoning

The court traced the traditional Wednesbury position and the Municipal Council of Mombasa decision, then adopted the Court of Appeal's Suchan Investment holding that proportionality under section 7(2)(l) of the Fair Administrative Action Act invites the court to evaluate the merits of the decision, marking a shift towards merit consideration in statutory judicial review.

p. 3
02

Whether the Respondent's decision was illegal, irrational or procedurally improper

Holding

The court could not so find because the Applicant failed to exhibit the proceedings and judgment in Syongila African Court Case No. 24 of 1961, the foundation of his complaint

Reasoning

The central complaint was that the Respondent wrongly found the suit land subject to Case No. 24/61. The Land Committee, Arbitration Board and Minister's decisions all turned on that case, yet neither the proceedings nor judgment were exhibited. Without them the court could not assess whether the Minister misdirected himself, and any determination would be speculation.

p. 3

Legal principles established

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  • An applicant for judicial review must show that the decision complained of is tainted with illegality, irrationality or procedural impropriety
  • A party seeking review of a decision alleged to have misapplied a prior court decision must exhibit the proceedings and judgment of that prior case; absent such material, the claim cannot be determined without speculation

Court orders

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  1. 1.The Application dated 3rd August, 2018 is dismissed
  2. 2.Costs of the application awarded against the Ex-parte Applicant

Authorities

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Legislation

  • Fair Administrative Action ActSection 7(2)(l)
  • Constitution of KenyaArticle 24(1)(b) and (e)

Cases cited (6)

  • Associated Provincial Picture Houses Ltd vs. Wednesbury Corporation
    (1947) 2 ALL ER. 680
  • Municipal Council of Mombasa vs. Republic and Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Pastoli vs. Kabale District Local Government Council and others
    (2008) 2 E.A 300
  • Council of Civil Servants Unions vs. Minister for the Civil Service
    (1985) AC 2
  • Suchan Investment Limited vs. The Ministry of National Heritage & Culture & Others
    (2016) eKLR
  • R v Home Secretary; Ex parte Daly
    [2001] 2 AC 532
Jurisdiction invoked
Judicial review jurisdiction of the High Court under the law of Kenya, including section 7(2)(l) of the Fair Administrative Action Act (discussed by the court); no specific constitutional article invoked by the court

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 Deputy County Commissioner Kitui Central Sub-County; Muindi Kimweli (Deceased) & another (Interested Parties) Ex Parte Munuve Kolu (Deceased) & another [2020] KEELC 3498 (KLR)", Case Analysis (2020). Judicial Review Application (Notice of Motion dated 3rd August, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3498/eng@2020-02-21

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