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ELCPartially AllowedJudicial Review (Notice of Motion dated 10th November 2020)· [2021] KEELC 2822 (KLR)

Republic v Cabinet Secretary Ministry of Lands & Physical Planning & 3 others Ex parte Phares Mugambi; Rauni Nkari (Interested Party) [2021] KEELC 2822 (KLR)

Environment and Land Court (High Court), Chuka
23 June 2021
6,744 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed a Minister's land decision because five days' hearing notice was too short for a fair hearing.

What this practically means

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Executive summary

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The ex-parte applicant, Phares Mugambi, sought orders of certiorari to quash the decision of the Cabinet Secretary, Ministry of Lands and Physical Planning, dated 1 September 2020 in Minister's Appeal Case No. 24 of 2018, which awarded the whole of land parcel no. 106 Marembo/Rianthiga Adjudication Section to the interested party, Rauni Nkari, and an order of prohibition against the 2nd and 3rd respondents implementing the decision by altering the adjudication register. The application was canvassed by written submissions. The applicant contended the decision was procedurally unfair, irrational and made in ignorance of relevant considerations, principally because he was served with the hearing notice on 27 December 2018 for a hearing on 3 January 2019 - a five-day notice - denying him adequate preparation time and the ability to call witnesses, contrary to Article 47 and the Fair Administrative Action Act. The respondents and the interested party argued the decision was procedurally fair, the applicant participated and cross-examined witnesses, and judicial review concerns the process, not the merits. The court agreed judicial review examines the decision-making process and observed that many of the applicant's grounds attacked the decision rather than the process. However, it found the five-day notice grossly insufficient to prepare the case, breaching the applicant's right to a lawful, reasonable and fair hearing. On that ground alone the court quashed the minister's decision and directed that the appeal be reheard by another officer. No costs were awarded; the applicant and the interested party were each to bear their own costs. Prohibition was not separately pronounced, the court declining to address the remaining issues.

Key legal issues

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01

Whether the five-day notice before the ministerial appeal hearing amounted to procedural impropriety

Holding

Yes. The five-day notice was grossly insufficient to prepare the case, denying the applicant a fair hearing under Article 47 and natural justice

Reasoning

The court noted the applicant received the hearing notice on 27 December 2018 for a hearing on 3 January 2019. Although he participated in the proceedings, the court held the scope of his participation was undermined by the extremely short notice, which did not allow adequate preparation or legal advice. This alone justified quashing the decision without addressing the other grounds.

p. 9
02

Whether judicial review concerns the decision-making process rather than the merits

Holding

Yes. The court accepted, as all parties agreed, that judicial review examines the process, not the merits, and declined to disturb the minister's factual and legal conclusions

Reasoning

The court observed that many of the applicant's grounds attacked the decision itself rather than the process, and that the court may not direct the minister on how to handle an appeal, including whether to visit the locus in quo. Only the process-based ground of inadequate notice succeeded.

p. 8
03

Whether judicial review orders are discretionary and may be denied even when warranted

Holding

Partially correct: the orders are discretionary but must not be exercised capriciously

Reasoning

In addressing the grounds of opposition, the court accepted that judicial review deals with procedure and not results, but corrected the respondents' assertion that discretionary remedies can be denied at will, holding that discretion must be exercised judicially.

p. 9

Legal principles established

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  • An extremely short notice of a hearing of a ministerial appeal breaches the right to a lawful, reasonable and procedurally fair administrative hearing
  • Where a decision is quashed for procedural unfairness, it must be reheard by a different officer than the one who made the impugned decision

Court orders

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  1. 1.The suit is upheld and the minister's decision in Minister's Appeal Case No. 24 of 2018 is quashed
  2. 2.The appeal is to be heard by another officer and not the one who made the impugned decision
  3. 3.The Exparte Applicant and the Interested Party to bear their own costs; no costs awarded against the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3(1); Order 21 Rule 4
  • Law Reform Act, Cap 26Sections 8 and 9
  • Constitution of Kenya, 2010Article 47
  • Fair Administrative Action Act, 2015Sections 4, 4(3), 11
  • Land Adjudication Act, Cap 284Section 29

Cases cited (15)

  • 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
  • Council of Civil Service Unions v Minister for the Civil Service
    [1985] AC 2
  • Re An Application by Bukoba Gymkhana Club
    [1963] EA 478
  • Republic v Nairobi City County Ex-parte Gucharn Singh Sihra & 4 others
    (2014) eKLR
  • Republic vs Kenya Revenue Authority Ex-parte Yaya Towers Limited
    (2008) 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
  • Republic vs Kenya Revenue Authority & another Ex-Parte Tradewise Agencies
    (2013) eKLR
  • Republic v Director of Immigration Services & 2 others Exparte Olamilekan Gbenga Fasuyi & 2 others
    [2018] eKLR
  • Republic versus Nairobi City County, Bernadette Gitari, Gucharn Singh Sihra, Maeve Mary Sihra, Davinder Singh Bharij and Sorej Kumari Bharij
    Misc. Civil Application (JR) No. 59 of 2014
  • Municipal Council of Mombasa versus Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Francis Bahikirwe Muntu and others v Kyambogo University
    Miscellaneous Application No. 643 of 2005 (UR)
  • Al-Mehdawi v Secretary of State for the Home Department
    [1990] AC 876
Jurisdiction invoked
Order 53 Rule 3(1) of the Civil Procedure Rules; Sections 8 and 9 of the Law Reform Act, Cap 26

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 Cabinet Secretary Ministry of Lands & Physical Planning & 3 others Ex parte Phares Mugambi; Rauni Nkari (Interested Party) [2021] KEELC 2822 (KLR)", Case Analysis (2021). Judicial Review (Notice of Motion dated 10th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2822/eng@2021-06-23

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