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ELCDismissedNot stated in judgment (Notice of Motion dated 14th October, 2019 arising from Petition dated 14th October, 2019)· [2021] KEELC 4474 (KLR)

Tili Nguutu v Cabinet Secretary for Lands, Housing and Urban Development & 2 others [2021] KEELC 4474 (KLR)

Environment and Land Court
29 January 2021
OAO.A. Angote
1,403 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Machakos Environment and Land Court dismissed a landowner's attempt to block a Minister's land decision, ruling that judicial review—not a constitutional petition—was the correct route.

What this practically means

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Executive summary

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The Petitioner moved the court by Notice of Motion dated 14th October 2019 seeking a stay of the determination and consequential orders of the 1st Respondent in Appeal No. 111 of 1988 pending hearing of his Petition. The Petition, also dated 14th October 2019, sought a declaration that he is the rightful owner of land parcel Mutonguni/Kakeani/2160, which he inherited from his father, plus certiorari to quash the 1st Respondent's decision of 30th April 2019 dismissing his appeal and awarding the suit property to the 3rd Respondent's late father. The Petitioner complained that the 1st Respondent's decision was made in bad faith, ignored the evidence, was unreasonable and tainted with bias, offending his proprietary rights and fair administrative action. The 3rd Respondent opposed, arguing that the Petition was a disguised appeal against the Minister's decision, raised no constitutional issues, and violated Rule 4(1) of the Mutunga Rules; he also submitted the stay conditions were unmet. The court held that under section 29 of the Land Adjudication Act the 1st Respondent's decision is final, but finality does not oust the court's supervisory jurisdiction; the proper remedy was a judicial review application under the Law Reform Act and Order 53 of the Civil Procedure Rules. The court found, relying on Re Marles' Application, that complaints of unfairness, unreasonableness or bias against a body exercising a statutory mandate do not amount to constitutional issues. Finding no prima facie constitutional case with chances of success, the court dismissed the application with costs.

Key legal issues

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01

Whether a constitutional petition can be used to challenge a final statutory adjudication decision

Holding

No. The Petition is essentially an appeal against the 1st Respondent's decision and, as no constitutional issues are raised, the Petitioner has no prima facie case and the stay application fails.

Reasoning

Section 29 of the Land Adjudication Act makes the Minister's decision final. Finality clauses do not oust the court's supervisory jurisdiction, so the proper avenue to attack the decision for unfairness, unreasonableness or bias was a judicial review application under the Law Reform Act and Order 53 of the Civil Procedure Rules, not a petition under the Mutunga Rules, which require an alleged denial, violation, infringement or threat of a right or fundamental freedom.

p. 2
02

Whether the Petitioner satisfied the conditions for a stay under Order 42 Rule 6 of the Civil Procedure Rules

Holding

He did not; having failed to raise a constitutional issue or establish a prima facie case with chances of success, the stay application was dismissed with costs.

Reasoning

The court found that the Petition was an appeal against the Minister's decision dressed as a constitutional petition. Since all parties were granted a fair hearing by the 1st Respondent and no constitutional issue was raised prima facie, the Petitioner could not demonstrate a prima facie case with chances of success, a foundational condition for the exercise of discretion to stay.

p. 3

Legal principles established

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  • A decision made final by statute does not oust the court's supervisory jurisdiction; the remedy against such a decision lies in judicial review, not in a constitutional petition seeking a disguised appeal.
  • A complaint that a statutory body's decision was unfair or unreasonable does not amount to a constitutional issue.

Court orders

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  1. 1.The Application dated 14th October, 2019 is dismissed with costs

Authorities

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Legislation

  • Land Adjudication ActSection 29(1)
  • Law Reform ActNot specified (judicial review provisions)
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Order 53
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 4(1)
  • Constitution of Kenya, 2010Article 23

Cases cited (2)

  • In Re Marles' Application
    (1958) 153 at 155
  • Re Gilmore's Application
    (1957) All E.R. 796
Jurisdiction invoked
Constitution of Kenya, 2010 (Petition seeking relief under Article 23; fair administrative action invoked)

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, "Tili Nguutu v Cabinet Secretary for Lands, Housing and Urban Development & 2 others [2021] KEELC 4474 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 14th October, 2019 arising from Petition dated 14th October, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4474/eng@2021-01-29

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