Republic v Cabinet Secretary for Lands, Housing & Urban Development & 2 others; Nadosoito (Exparte); Nchoe & 2 others (Interested Party) (Judicial Review Application E004 of 2021) [2022] KEELC 2453 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a judicial review bid to overturn a land appeal decision, confirming review courts cannot resolve disputed facts like land sale disputes.
What this practically means
#Executive summary
#Key legal issues
#Scope of judicial review jurisdiction
Judicial review examines only the lawfulness and fairness of the decision-making process; the court cannot sit in appeal over the decision-maker or weigh evidence
Relying on Article 47 of the Constitution, Section 7 of the Fair Administrative Action Act and authorities including Diamond Hashim Lalji, Municipal Council of Mombasa and Minister for Immigration v SZJSS, the court held that its role is supervisory. Whether a sale agreement existed was a contested issue of fact requiring direct evidence tested by cross-examination, unsuitable for judicial review.
Whether the applicant's natural justice and fairness complaints were established
The applicant's witness was heard and cross-examined in the Minister's appeal, and the applicant failed to demonstrate illegality, bias or denial of natural justice
The record showed the applicant testified with a witness, Kela Nadasoito, who was cross-examined before the minister. The adjudication register complaint had not been raised in the grounds of appeal. The impugned finding showed the minister had examined the evidence, including on the alleged sale, so no procedural unfairness or illegality was made out.
Exceptions allowing a review court to consider merits
Merits may only be examined where the decision-maker acted outside jurisdiction, considered irrelevant matters, ignored relevant ones, or reached a Wednesbury-unreasonable decision
Citing Republic v Public Procurement Administrative Review Board Ex Parte Sanitam Services (EA) Limited (Mumbi Ngugi J), the court acknowledged the Wednesbury exceptions but found none of them engaged on the facts before it.
Legal principles established
#- Judicial review concerns the decision-making process, not the merits of the decision
- Courts lack jurisdiction in judicial review proceedings to determine contested issues of fact
Court orders
#- 1.The notice of motion application dated May 24, 2021 is dismissed
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Section 8 and 9 of the Law Reform Act; Order 53 Rule 3 of the Civil Procedure Rules; Section 13(7) of the Environment and Land Court Act; Article 23(3) and 47 of the Constitution; Section 7 of the Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Cabinet Secretary for Lands, Housing & Urban Development & 2 others; Nadosoito (Exparte); Nchoe & 2 others (Interested Party) (Judicial Review Application E004 of 2021) [2022] KEELC 2453 (KLR)", Case Analysis (2022). Judicial Review (Notice of motion dated May 24, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2453/eng@2022-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.