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ELCDismissedELC JR Case No. 2 of 2020· [2021] KEELC 4238 (KLR)

Eunice Khalwali Miima v County Government of Kakamega [2021] KEELC 4238 (KLR)

Environment and Land Court
23 February 2021
NMN.A. Matheka
3,664 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court-adjacent land court dismissed a plot owner's challenge because she skipped the county land appeals committee first, confirming appeal routes must be exhausted before going to court.

What this practically means

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Executive summary

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The ex-parte applicant, the registered leasehold proprietor of Kakamega Municipality Block 1/734, brought a judicial review application under Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules seeking certiorari to quash the respondent's published notice of repossession of undeveloped plots in Kakamega Municipality, three orders of prohibition against repossession, alienation and interference with her title, and a declaration that the repossession was unconstitutional, null and void. She argued that the respondent violated Article 47 and the Fair Administrative Action Act, usurped the National Land Commission's statutory power of compulsory acquisition under Part VII of the Land Act, acted arbitrarily without a hearing, and failed to offer just compensation. The respondent countered that the court lacked jurisdiction because the applicant had not exhausted the remedy of appeal to the Kakamega Land Appeals Committee established vide Gazette Notice Number 59 (Vol. 4), that the lease required development within stipulated conditions which she had not fulfilled, and that the notice was only a notice of intention. The court, N.A. Matheka, J, framed the preliminary issue as whether the suit was bad in law under the doctrine of exhaustion. Applying Section 9(2) of the Fair Administrative Action Act and the authorities on exhaustion, including Geoffrey Muthinja Kabiru and the Mui Coal Basin case, the court held that the word 'shall' in Section 9(2) is mandatory, found no exceptional circumstances to deviate, dismissed the application with costs to the respondent.

Key legal issues

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01

Whether the judicial review application was premature for failure to exhaust alternative remedies

Holding

The application was bad in law under the doctrine of exhaustion; the applicant was required to appeal to the Kakamega Land Appeals Committee before invoking the court's jurisdiction

Reasoning

The court found that the Kakamega Land Appeals Committee was established vide Gazette Notice Number 59 (Vol. 4) as an independent body. Section 9(2) of the Fair Administrative Action Act, enacted to operationalise Article 47, mandatorily requires exhaustion of internal mechanisms and all remedies under other written law before review. The word 'shall' imports a command. The applicant lodged no appeal and the court found no exceptional circumstances to deviate.

p. 3
02

Whether judicial review remedies are discretionary

Holding

Judicial review orders are discretionary and not guaranteed; the court is not bound to grant them even where a case falls within the categories where review lies

Reasoning

Relying on Halsbury's Laws of England and Republic vs. Judicial Service Commission Ex Parte Stephen S. Pareno, the court reiterated that the remedy of judicial review concerns the decision-making process rather than the merits, and that the granting of prerogative orders depends on the circumstances of each case and sound legal principles.

p. 3

Legal principles established

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  • Where a dispute resolution mechanism exists outside courts, the same must be exhausted before the jurisdiction of the courts is invoked; courts are fora of last resort
  • Section 9(2) of the Fair Administrative Action Act mandatorily requires exhaustion of internal mechanisms for appeal or review and all remedies available under any other written law before judicial review is sought

Court orders

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  1. 1.The applicant's judicial review application is dismissed with costs to the respondent

Authorities

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Legislation

  • The Law Reform ActSections 8 and 9; Part VI (Cap 26)
  • Civil Procedure RulesOrder 53
  • Constitution of KenyaArticles 40, 40(2), 40(3), 47, 47(2), 67(2), 159, 165
  • Fair Administrative Action ActSections 9(2), 9(3)
  • National Land Commission Act
  • Land ActPart VII; Section 111

Cases cited (13)

  • Republic vs. Commissioner of Co-operatives ex-parte Kirinyaga Tea Growers Co-operative Savings and Credit Society Ltd
    1999 1 EACA 245
  • Kenya National Examination Council vs. Republic
    Court of Appeal at Nairobi Civil Appeal No. 266 of 1996
  • Giella vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Republic v Kenya Revenue Authority & Another Ex-Parte Tradewise Agencies
    (2013) eKLR
  • Pastoli vs. Kabale District Local Government Council and Others
    (2008) 2 EA 300
  • Republic vs Kenya Revenue Authority ex parte Yaya Towers Limited
    (2008) eKLR
  • Republic vs. Judicial Service Commission of Kenya Ex Parte Stephen S. Pareno
    (2004) 1 KLR 203
  • Welamondi vs The Chairman, Electrol Commission of Kenya
    (2002) 1 KLR
  • Republic vs Chairperson Business Premises Rent Tribunal & Another Ex-parte Keiyo Housing Cooperative Society Ltd & another
    (2014) eKLR
  • Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others
    Civil Application No. 307 of 2003
  • Geoffrey Muthinja Kabiru & 2 Others – vs – Samuel Munga Henry & 1756 Others
    (2015) eKLR
  • In the Matter of the Mui Coal Basin Local Community
    2015 eKLR
  • Republic vs Kenya Revenue Authority, Commissioner Ex parte Keycorp Real advisory Limited
    (2019) eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules; Article 165 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Eunice Khalwali Miima v County Government of Kakamega [2021] KEELC 4238 (KLR)", Case Analysis (2021). ELC JR Case No. 2 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4238/eng@2021-02-23

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