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ELCDismissedNot stated in the judgment (Amended Notice of Motion dated July 21, 2020)· [2022] KEELC 3748 (KLR)

Mungai v Cabinet Secretary Ministry Of Interior and Co-ordination of National Government & 5 others; County Government of Nairobi & 2 others (Interested Parties) (Environment and Land Judicial Review Case 185 of 2013) [2022] KEELC 3748 (KLR)

High Court of Kenya (Judicial Review)
26 July 2022
SOS Okong'o
3,635 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The High Court dismissed a property owner's bid to block demolition near Moi Airbase because he never identified any specific decision to challenge.

What this practically means

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Executive summary

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The Applicant, the registered owner of L R No 36/111/27 in Eastleigh, Nairobi, where he had built a four-storey building, sought judicial review orders of certiorari and prohibition against the Respondents' alleged decision to demolish all buildings within 12 metres of the Eastleigh Airbase boundary and buildings of more than two floors within 30 metres. He contended he received no notice of the decision, held approvals from the City Council of Nairobi, and that his property, marked with an 'X' sign, was under threat. He argued violations of procedural fairness, legitimate expectation, and his constitutional rights under Articles 35 and 40. The Respondents opposed, arguing that no decision was attached, the application was out of time under Order 53, the matter was complex and suited to a civil suit, and that the Applicant lacked the requisite approvals including from Kenya Civil Aviation Authority, the Commissioner of Lands, and other bodies. The court, applying the settled principle that judicial review concerns the decision-making process rather than merits, found that no identifiable administrative decision was placed before the court, that the Applicant failed to establish which Respondent made the decision, when, or how, and that questions of approvals and land rights required viva voce evidence in a civil suit rather than judicial review. It held that a suit for injunction would have been more appropriate. The amended Notice of Motion was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether an order of certiorari could issue where no decision was produced or identified

Holding

Certiorari could not issue because no decision was placed before the court and the Applicant did not establish that a decision was made, by whom, or when

Reasoning

The court found that the Applicant's building had merely been marked with an 'X' sign and neighbouring buildings demolished, but the Applicant never attached or pleaded the decision complained of with sufficient clarity. With several Respondents, the Applicant did not identify which of them made the impugned decision, so the court could not scrutinise its legality. Certiorari presupposes an existing decision to quash.

p. 7
02

Whether judicial review was the proper forum for what is essentially a land and property dispute

Holding

No - the issues could be better resolved in a normal civil suit, ideally one for injunction against those engaged in the demolition

Reasoning

The court held that questions such as whether the Applicant obtained the requisite approvals and whether the property falls within the Airbase safeguarding area go to the merits and are beyond the scope of judicial review. Following Sanghani Investment, disputes over ownership and occupation of land require viva voce evidence and cross-examination, unavailable in judicial review. A suit for injunction would have been more appropriate.

p. 7

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision itself
  • Certiorari can only quash a decision already made; where no identifiable decision exists, both certiorari and prohibition are unavailable
  • Judicial review is a discretionary remedy that may be refused even where grounds exist, if it would not serve a useful purpose
  • Disputes over ownership, occupation and rights in land requiring viva voce evidence cannot be resolved through judicial review but belong in a civil suit

Court orders

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  1. 1.The amended Notice of Motion dated July 21, 2020 is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 2
  • Civil Procedure RulesOrder 53 Rule 7(1)
  • Civil Procedure RulesOrder LIII
  • Constitution of KenyaArticle 35 (right to information)
  • Constitution of KenyaArticle 40 (right to own property)
  • Legal Notice No 309 of 1961Declaration of Moi Eastleigh Airbase as a protected zone
  • International Covenant on Economic, Social and Cultural RightsRight to adequate housing

Cases cited (9)

  • Republic v National Environment Management Authority & Another
    [2006] eKLR
  • Associated Provincial Picture Houses Ltd v Wednesbury Corporation
    [1948] 1 KB 223
  • R v Devon CC ex parte Baker
    [1995] 1 All ER 73
  • Redcliff Holdings Limited v Registrar of Titles & 2 others
    [2017] eKLR
  • Municipal Council of Mombasa v Republic & another
    [2002] eKLR
  • OJSC Power Machines Limited, Trans Century Limited, and Civicon Limited (Consortium) v Public Procurement Administrative Review Board Kenya & 2 others
    NRB CA 28 of 2016, [2017] eKLR
  • Kenya National Examination Council v Republic, Ex-parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR
  • Republic v National Land Commission Ex-Parte Ephrahim Muriuki Wilson & others
    [2018] eKLR
  • Sanghani Investment Limited v Officer in Charge Nairobi Remand and Allocation Prison
    [2007] 1 EA 354
Jurisdiction invoked
Order 53 of the Civil Procedure Rules (judicial review jurisdiction of the High Court)

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, "Mungai v Cabinet Secretary Ministry Of Interior and Co-ordination of National Government & 5 others; County Government of Nairobi & 2 others (Interested Parties) (Environment and Land Judicial Review Case 185 of 2013) [2022] KEELC 3748 (KLR)", Case Analysis (2022). Not stated in the judgment (Amended Notice of Motion dated July 21, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3748/eng@2022-07-26

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