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ELCAllowedJudicial Review (Notice of Motion dated 2nd November 2020)· [2022] KEELC 2722 (KLR)

Republic v Deputy County Commissioner Lower Yatta Sub-County & another; Munyao (Exparte); Muinde & another (Interested Parties) (Judicial Review 17 of 2021) [2022] KEELC 2722 (KLR)

Environment and Land Court of Kenya
29 June 2022
5,600 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed a land appeal decision because the decision-maker gave no reasons, ordering the appeal to be heard afresh.

What this practically means

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Executive summary

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The Ex parte Applicant sought an order of certiorari under Order 53 of the Civil Procedure Rules and Articles 165(6) and (7) of the Constitution to quash the decision of the 1st Respondent dated 28 April 2020 in Minister's Appeal No. 98 of 2001 concerning parcel No. 2366 carved out of parcel 2188 in the Ndunguni Adjudication Section. The dispute over the original parcel No. 1508 had passed through the adjudication committee (1999), the Arbitration Board (2000) and an objection before the Land Adjudication Officer (2001), who awarded a portion to the Applicant. The Applicant's further appeal to the Minister was decided on 28 April 2020 by a two-line judgment upholding the objection decision without reasons. The Applicant complained of failure to analyse the grounds of appeal, absence of a factual basis, bias and breach of natural justice. The Respondents maintained that judicial review is supervisory only and that Section 29 of the Land Adjudication Act prescribes no procedure; the Interested Parties said the Applicant was fully heard. The court framed two issues: whether reasons were given, and whether the decision was irrational and tainted with illegality. Relying on Article 47, the Fair Administrative Action Act, and authorities including Wednesbury, Suchan Investment and Msagha, the court held that the one-line decision contained no reasons, breaching Article 47(2) and rendering the decision unreasoned, irrational, unreasonable, illegal and procedurally improper. The Notice of Motion was allowed: certiorari issued quashing the decision, the Minister's appeal was remitted for hearing and determination in accordance with the law, and costs were awarded to the Ex parte Applicant by the 1st Respondent.

Key legal issues

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01

Whether the 1st Respondent gave reasons for his decision in Minister's Appeal No. 98 of 2001

Holding

The one-line decision containing no reasons did not satisfy Article 47(2) of the Constitution and Section 23 of the Fair Administrative Action Act.

Reasoning

The decision consisted of a two-line statement upholding the objection decision. Reasons are a fundamental attribute of common law adjudication, enabling parties to see how their arguments were dealt with, enabling review, and furthering accountability. The court found the decision contained no reasons at all, and the applicant was left to guess which grounds of appeal succeeded or failed.

p. 7
02

Whether the decision was irrational, unreasonable and tainted with illegality and procedural impropriety

Holding

Failure to give reasons rendered the decision irrational (unreasoned), unreasonable and illegal, as it breached Article 47(2) and Section 23 of the Fair Administrative Action Act.

Reasoning

Relying on Wednesbury and De Smith, the court held a decision is irrational if it is unreasoned and lacking ostensible logic or comprehensible justification. The decision-maker did not show that he considered the matters he was bound to consider, namely the grounds of appeal and the lower adjudication record, and the decision denied the applicant a fundamental right while his property right under Article 40 was adversely affected.

p. 7
03

The scope of judicial review vis-à-vis the merits of the Minister's decision

Holding

The court did not review the merits; it found the decision-making process flawed for want of reasons and breach of natural justice.

Reasoning

Judicial review concerns the decision-making process, not the merits. However, failure to give reasons casts doubt on the fairness of the decision-maker and breaches the rules of natural justice; where natural justice is violated, the decision must be declared no decision. The remedy was certiorari and remission for a fresh hearing in accordance with the law.

p. 9

Legal principles established

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  • A quasi-judicial decision-maker whose action adversely affects a person's rights must give written reasons; failure to give reasons renders the decision irrational, unreasonable and tainted with illegality and procedural impropriety.
  • The right to be given reasons for administrative action is guaranteed under Article 47(2) of the Constitution and Section 23 of the Fair Administrative Action Act.
  • Common law principles on judicial review (illegality, irrationality, procedural impropriety, proportionality) continue to apply in Kenya pursuant to Section 12 of the Fair Administrative Action Act.

Court orders

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  1. 1.An order of Certiorari granted to remove into the Court the proceedings and the decision of the 1st Respondent dated 28.4.2020 and the same quashed for being null and void
  2. 2.Minister's Appeal Case No. 98 of 2001 (Ndunguni Adjudication Section, Parcel No. 2366) referred back with directions that the same be heard and determined in accordance with the law
  3. 3.Costs of the suit awarded to the Ex parte Applicant by the 1st Respondent
Jurisdiction invoked
Article 165(6) as read with Article 165(7) of the Constitution of Kenya (supervisory jurisdiction) and Order 53 of the Civil Procedure Rules

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 Deputy County Commissioner Lower Yatta Sub-County & another; Munyao (Exparte); Muinde & another (Interested Parties) (Judicial Review 17 of 2021) [2022] KEELC 2722 (KLR)", Case Analysis (2022). Judicial Review (Notice of Motion dated 2nd November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2722/eng@2022-06-29

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