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ELCDismissedELC Miscellaneous Application No. 35 of 2019· [2021] KEELC 1874 (KLR)

Republic v National Land Commission & another Ex Parte Ivan Madegwa; Kamau Mbugua (Interested Party) [2021] KEELC 1874 (KLR)

Environment and Land Court
20 September 2021
COChristine Ochieng
4,279 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a landowner's challenge because he had already received a fair hearing and should fight the ownership dispute in his ongoing civil case instead.

What this practically means

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Executive summary

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The ex parte Applicant, Ivan Madegwa, sought judicial review orders of certiorari and prohibition to quash a decision dated 6th November 2018 cancelling his allocation of Plot No. B 228 Ole Kasasi B and to restrain the National Land Commission and County Government of Kajiado from implementing any review decision relating to the plot. He argued that an Ad Hoc Committee deprived him of a fair hearing, exceeded its mandate and acted ultra vires, relying on Section 14 of the National Land Commission Act on timing. The National Land Commission contended ownership issues required an ordinary civil suit; the County Government deposed that the plot was under dispute referred to the Commission; the Interested Party, Kamau Mbugua, claimed to be the bona fide registered proprietor and noted a pending suit at Ngong (ELC No. 23 of 2019). The court, applying the Council of Civil Service Unions standards of illegality, irrationality and procedural impropriety, held that judicial review concerns process rather than merits. It found the Applicant had participated in the Committee proceedings, called witnesses and produced documents, and admitted being accorded a fair hearing; he failed to demonstrate failure to consider materials or unreasonableness. Ownership of the suit land was pending determination in the Ngong suit, which was the appropriate forum. The Notice of Motion dated 6th June 2019 was dismissed with costs.

Key legal issues

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01

Whether the ex parte Applicant was entitled to judicial review orders of certiorari and prohibition

Holding

The application was dismissed. The ex parte Applicant was accorded a fair hearing; judicial review is not the appropriate forum for determining ownership where an alternative civil suit is pending.

Reasoning

Applying the Council of Civil Service Unions grounds of illegality, irrationality and procedural impropriety, the court found the Applicant participated in the Ad Hoc Committee proceedings, called witnesses and produced documents. He failed to demonstrate failure to consider the materials or unreasonableness obviating natural justice. His grievance concerns the outcome, which is a matter for the pending Ngong ELC suit where ownership can be determined with viva voce evidence.

p. 5

Legal principles established

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  • Judicial review concerns the decision-making process, not the merits of the decision, and the court should not act as a court of appeal over the decision maker.
  • A party who participates in proceedings before an administrative body and is accorded a hearing cannot claim procedural unfairness merely because he is dissatisfied with the outcome; an alternative remedy may be preferred.

Court orders

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  1. 1.Notice of Motion Application dated 6th June, 2019 dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticles 67(2)(e), 67(3), 68(c)(v)
  • Fair Administrative Action ActSections 7, 8
  • National Land Commission ActSections 3(b), 14
  • Civil Procedure ActSection 6
  • Civil Procedure Rules, 2010Order 53
  • Law Reform ActCap 26

Cases cited (16)

  • Council for Civil Service Unions vs. Minister for Civil Service
    [1985] A.C. 374
  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Republic vs. National Employment Authority & 3 others Exparte Middle East Consultancy Services Limited
    (2018) eKLR
  • Reid vs. Secretary of State for Scotland
    (1999) 2 AC 512
  • Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 Others
    (1997) eKLR
  • Republic v Commissioner of Domestic Taxes Ex Parte Sony Holdings Limited
    (2019) eKLR
  • Rukaya Ali Mohamed v David Gikonyo Nambacha & Another
    Kisumu HCCA No. 9 of 2004
  • Republic vs National Land Commission & 2 Others ex Parte Biren Amritlal Shah
    (2019) eKLR
  • Nguruman Limited v Jan Bonde Nielsen & Another
    (2017) eKLR
  • Church Road Development Company Ltd v Barclays Bank of Kenya Ltd & 2 Others
    (2007) eKLR
  • Benja Properties Limited v Savings & Loans K. Ltd
    (2005) eKLR
  • Muturi Investments Ltd v NBK
    (2006) eKLR
  • Abigail Baram v Mwangi Theuri
    ELC 393 of 2013
  • R v Aga Khan Education Services ex parte Ali Sele & 20 Others
    High Court Misc. Application No. 12 of 2002
  • Russel vs Duke of Norfork
    (1949) 1 All ER at 11B
  • Livingstone Kunini Ntutu v Ministry of Lands & 4 Others
    (2014) eKLR
Jurisdiction invoked
Order 53 of the Civil Procedure Rules, 2010; Article 47 of the Constitution; Section 7 of the Fair Administrative Action Act

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 National Land Commission & another Ex Parte Ivan Madegwa; Kamau Mbugua (Interested Party) [2021] KEELC 1874 (KLR)", Case Analysis (2021). ELC Miscellaneous Application No. 35 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1874/eng@2021-09-20

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