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ELCDismissed· [2021] KEELC 4184 (KLR)

Salome Ludenyi Munubi v Ethics and Anti-Corruption Commission & another; Dasahe Investments Limited & 2 others (Interested parties) [2021] KEELC 4184 (KLR)

High Court of Kenya
25 February 2021
SOS. Okong'o
1,741 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court ruled that an EACC demand letter is not a final decision, so courts will usually refuse judicial review when recovery proceedings offer a proper chance to respond.

What this practically means

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Executive summary

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The applicant, Dr. Salome Ludenyi Munubi, a director of taxation and valuation at the National Land Commission, sought leave to apply for judicial review orders of certiorari, prohibition and mandamus to challenge a letter dated 28th September 2020 by the Ethics and Anti-Corruption Commission demanding Kshs. 221,375,000/= from her as loss occasioned to the public through compensation paid for the compulsory acquisition of L.R. Nos. 9085, 9086, 9087 and 9088 Nairobi. She argued that under section 116 of the Land Act, 2012 any erroneous compensation is recoverable as a debt by the National Land Commission from the 1st and 2nd interested parties who received it, not from her; that the EACC had no legal authority to demand the sum from her; that the compensation was not made in error; and that the demand was unlawful, ultra vires and in bad faith. She also sought an order that leave operate as a stay. Okong'o J, applying the arguable case test in Njuguna v Minister for Agriculture and the rationale in Republic v County Council of Kwale, held that the applicant had not established a prima facie case. The demand letter was merely a demand precedent to recovery proceedings in which the applicant could defend herself, and the validity of the compensation could not be determined in judicial review. Absent any violation of public law or constitutional rights, leave was refused. The Chamber Summons dated 15th October 2020 was dismissed with no order as to costs, and the stay issue was not reached.

Key legal issues

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01

Whether the applicant established an arguable/prima facie case for leave to apply for judicial review

Holding

Leave was refused because the applicant failed to show any violation of her rights; the demand letter is a precursor to recovery proceedings in which she can raise her defences

Reasoning

The court applied the arguable case test from Njuguna v Minister for Agriculture and the rationale in Republic v County Council of Kwale. The applicant did not dispute the 1st respondent's statutory power to recover public losses from corruption. Liability would be determined in the threatened recovery proceedings, and the compensation validity question was outside judicial review. No prima facie case was therefore established.

p. 3
02

Whether leave, if granted, should operate as a stay

Holding

The issue was not reached because leave was refused

Reasoning

Since the court concluded that no case had been made for leave, it found it unnecessary to consider whether leave would operate as a stay. This issue was thus rendered moot by the dismissal of the leave application.

p. 3

Legal principles established

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  • The test for grant of leave for judicial review is whether there is an arguable case without examining the matter in depth
  • A mere demand letter that will be followed by civil recovery proceedings, in which the recipient may defend herself, is not amenable to judicial review absent violation of public law or constitutional rights
  • Validity of compensation payments cannot be determined in judicial review proceedings

Court orders

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  1. 1.The Chamber Summons dated 15th October 2020 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Land Actsection 116

Cases cited (2)

  • Njuguna v Minister for Agriculture
    [2000] 1 E.A 184
  • Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others
    [1998] 1 KLR (E&L)
Jurisdiction invoked
Judicial review jurisdiction of the High Court (Fair Administrative Action Act / order of leave to apply for certiorari, prohibition and mandamus); leave sought under the ex-parte Chamber Summons procedure

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, "Salome Ludenyi Munubi v Ethics and Anti-Corruption Commission & another; Dasahe Investments Limited & 2 others (Interested parties) [2021] KEELC 4184 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4184/eng@2021-02-25

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