Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedJudicial Review Application No. E002 of 2021· [2021] KEELC 810 (KLR)

Republic v Cabinet Secretary, Ministry of Lands & Physical Planning & 2 others;Gerevasio Mugao Nyaga(Interested Party) Exparte;Joseph Mutemi Nkuno & another [2021] KEELC 810 (KLR)

Environment and Land Court
22 November 2021
3,292 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Chuka dismissed a land judicial review because the applicants attacked the decision itself, not how it was made.

What this practically means

#

Executive summary

#
The ex parte applicants, Joseph Mutemi Nkuno and Moses Nkuno Makembo, challenged by notice of motion dated 27th April 2021 the decision of the Cabinet Secretary for Lands, delivered through the Deputy County Commissioner, Tharaka South Sub-county on 8th February 2021, dismissing their appeal under section 29 of the Land Adjudication Act and awarding Kamarandi 'B' Adjudication Section Parcel No. 73 to the interested party. They sought certiorari to quash the decision, prohibition against issuing a title to the interested party, and mandamus to re-demarcate the parcel and issue the 1st applicant a title, alleging the appeal process was unfair, irrational, biased and in bad faith - including that the DCC ignored witnesses, failed to visit the locus in quo, and that the adjudication committee was improperly constituted and influenced by the interested party's father. The respondents opposed, contending the application was misconceived and that judicial review concerns process, not results. The interested party did not respond. The court framed three issues: whether the respondents exercised their statutory duties, whether they acted irrationally or in bad faith, and whether judicial review orders were available. Applying section 29 of Cap 284, the burden-of-proof rule in section 108 of the Evidence Act, and the Wednesbury/Pastoli grounds of illegality, irrationality and procedural impropriety, the court found all parties were heard, the process was fair, objective and procedural, and the applicants' allegations were unsubstantiated generalisations directed at the merits rather than the process. The notice of motion was dismissed with costs to the respondents.

Key legal issues

#
01

Whether the Cabinet Secretary, acting through the DCC, exercised statutory duties under section 29 of the Land Adjudication Act

Holding

The appeal was properly conducted under section 29 of the Land Adjudication Act Cap 284 and due process was followed

Reasoning

The court found that the ex parte applicants duly appealed to the Cabinet Secretary under section 29 of Cap 284, which was delegated to the DCC under section 29(4). The DCC conducted the appeal proceedings and reached a decision following due process, so the respondents discharged their statutory mandate.

p. 3
02

Whether the DCC acted irrationally or in bad faith

Holding

No irrationality or bad faith was established; all parties were afforded an opportunity to present their cases

Reasoning

Applying the Wednesbury and Pastoli principles on illegality, irrationality and procedural impropriety, the court found the applicants made only general, unsubstantiated allegations. The record showed all parties, including the ex parte applicants, were heard, and no evidence of bad faith was disclosed.

p. 5
03

Whether judicial review orders of certiorari, prohibition and mandamus were available

Holding

The orders were refused; the applicants' complaints targeted the decision's merits rather than the process, and the remedies are discretionary

Reasoning

Relying on Halsbury's Laws and Lord Brightman in Chief Constable of the North Wales Police v Evans, the court held that judicial review remedies are discretionary and concerned only with the decision-making process. The applicants' allegations went to the decision itself, disentitling them from relief.

p. 5

Legal principles established

#
  • Judicial review concerns the decision-making process, not the merits of the decision; the court's role is supervisory, not appellate
  • A party alleging procedural unfairness bears the burden of substantiating the allegations

Court orders

#
  1. 1.The notice of motion application dated 27th April, 2021 is dismissed with costs to the Respondents.

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 40 and 43
  • Civil Procedure Rules, 2010Order 53 Rules 1, 2, 3 and 4; Order 21 Rule 4
  • Law Reform ActSections 8 and 9
  • Fair Administrative Action ActSections 7, 10, 11
  • Land Adjudication Act, Cap 284Section 29 (including s.29(4))
  • Land Adjudication Rules1970
  • Evidence ActSection 108

Cases cited (9)

  • M'Bita Ntiro v Mbae Mwirichia & another
    (2018) eKLR
  • Zachariah Wagunza & Another v Office of the Registrar, Academic Kenyatta University & 2 others
    (2013) eKLR
  • Pastoli vs Kabale District Local Government Council and Others
    (2008) 2 EA 300
  • Republic v Director of Immigration Services & 2 others Exparte Olamilekan Gbenga Fasuyi & 2 others
    (2018) eKLR
  • Republic v Kenya Revenue Authority Ex parte Cosmos Limited
    (2016) eKLR
  • Associated Provincial Picture Houses vs Wednesbury Corporation
    (1948) 1 KB 223
  • Short vs Poole Corporation
    (1926) Ch. 66
  • Chief Constable of the North Wales Police vs Evans
    (1982) 1 WLR 1155
  • Commissioner of Lands vs Kunste Hotel Limited
    (1997) eKLR
Jurisdiction invoked
Articles 40 and 43 of the Constitution; Sections 8 and 9 of the Law Reform Act (Cap 26); Order 53 Rules 1, 2, 3 and 4 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Cabinet Secretary, Ministry of Lands & Physical Planning & 2 others;Gerevasio Mugao Nyaga(Interested Party) Exparte;Joseph Mutemi Nkuno & another [2021] KEELC 810 (KLR)", Case Analysis (2021). Judicial Review Application No. E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/810/eng@2021-11-22

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