M'arachi v Land Adjudication Officer Meru Central (Ruiru/Rwarera Adjudication Section); Arachi (Interested Party)
The bottom line
#A landowner lost his court challenge because he skipped the required appeal to the Minister and argued new grounds not in his original court application.
What this practically means
#Executive summary
#Key legal issues
#Non-exhaustion of internal remedies
The applicant prematurely came to court; he ought to have preferred a minister's appeal under section 26 of the Land Adjudication Act and neither gave reasons nor sought exemption under section 9(4) of the FAAA
The court applied Geoffrey Muthinja Kabiru and Mutanga Tea on exhaustion, holding that courts are a last resort. The decision of May 2018 carried a right of appeal to the Minister within 60 days. The applicant instead filed judicial review in November 2018 without seeking exemption under section 9(4) of the Fair Administrative Action Act, even after non-exhaustion was raised by the respondent and interested party.
Grounds and reliefs beyond the statutory statement
The supplementary affidavit introduced new grounds contrary to the court's orders of March 24, 2022 and Order 53 rule 4; grounds of bias, illegality, ultra vires, irrationality and unreasonableness were not in the statement of facts
Order 53 rule 4 prohibits reliance on grounds or reliefs not set out in the statement of facts accompanying the leave application. The court found the documents filed with the notice of motion substantially the same as at leave stage, but the supplementary affidavit of April 2022 introduced new grounds without leave, and counsel argued matters (legality of the sale agreement, bias, ultra vires) outside the pleaded grounds.
Scope of judicial review post-2010
Fair administrative action is now a constitutional right under Article 47 and the FAAA 2015, but judicial review remains supervisory of process, not merits; certiorari cannot confer title to land
The court reviewed the FAAA's scheme (sections 4-12) and confirmed it applies to quasi-judicial adjudication officers. Nonetheless, the grounds pleaded attacked the merits of the ownership dispute - whether the applicant bought the land - which belongs to a civil suit or minister's appeal, not judicial review. Citing Makungo, certiorari was never designed to create or confer title to land.
Legal principles established
#- Where a statutory dispute resolution mechanism exists (here, a minister's appeal under section 26 of the Land Adjudication Act), it must be exhausted before invoking judicial review, absent exceptional circumstances and an exemption application under section 9(4) of the Fair Administrative Action Act
- No grounds or reliefs may be relied upon at the hearing of the notice of motion except those set out in the statement of facts accompanying the leave application
- Judicial review is concerned with the decision-making process, not the merits of the decision
Court orders
#- 1.The notice of motion dated December 14, 2018 is dismissed with costs
- Jurisdiction invoked
- Articles 23(3)(f) and 47 of the Constitution; Fair Administrative Action Act, 2015; Law Reform Act; Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M'arachi v Land Adjudication Officer Meru Central (Ruiru/Rwarera Adjudication Section); Arachi (Interested Party)", Case Analysis (2022). Judicial Review Application 20 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13311/eng@2022-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.