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ELCDismissedJudicial Review Application 20 of 2018· [2022] KEELC 13311 (KLR)

M'arachi v Land Adjudication Officer Meru Central (Ruiru/Rwarera Adjudication Section); Arachi (Interested Party)

Environment and Land Court at Meru
5 October 2022
5,418 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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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

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Executive summary

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The ex parte applicant sought certiorari to quash a land adjudication officer's decision in objection No 3997 (Ruiri-Rwarera Adjudication Section) and mandamus compelling the respondent to allow objection No 128, reverse registrations and return the land, claiming he had bought parcel No 1369 in 1988 and was denied a fair hearing. The respondent and the interested party (the applicant's brother, who held the land in trust for the siblings under the impugned decision) opposed, arguing the motion departed from the leave-stage statutory statement, that judicial review does not engage the merits, and that the applicant should have appealed to the Minister under section 26 of the Land Adjudication Act. Nzili J framed five issues. The court found the supplementary affidavit introduced grounds (bias, ultra vires, irrationality) not contained in the statement of facts, contrary to Order 53 rule 4 and the court's orders of March 24, 2022. On exhaustion, applying Geoffrey Muthinja Kabiru and Mutanga Tea, the court held the applicant prematurely came to court: he had a 60-day right of minister's appeal and neither used it nor sought exemption under section 9(4) of the Fair Administrative Action Act. The court reiterated that judicial review supervises process, not merits, and that certiorari cannot confer title to land. The notice of motion was dismissed with costs.

Key legal issues

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01

Non-exhaustion of internal remedies

Holding

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

Reasoning

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.

p. 10
02

Grounds and reliefs beyond the statutory statement

Holding

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

Reasoning

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.

p. 10
03

Scope of judicial review post-2010

Holding

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

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The notice of motion dated December 14, 2018 is dismissed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(3)(f), 47, 50, 159(2)(c)
  • Fair Administrative Action ActSections 4(1)-(4), 5, 6, 7, 8, 9 (incl. 9(4)), 10, 11, 12
  • Law Reform Act Cap 26Sections 8, 9(1)(c), 67
  • Civil Procedure RulesOrder 53 rules 2, 3, 4, 7 (as amended by Legal Notice 22 of February 26, 2020)
  • Land Adjudication Act Cap 284Section 26
  • Land Consolidation Act Cap 283
  • Land Registration Act Cap 300
  • Land Act Cap 6
  • Evidence ActSection 109
  • Law of Contract ActSection 2

Cases cited (17)

  • Council for Civil Service Unions v Minister for Civil Service
    (1985) AC 314

    Grounds of judicial review: illegality, irrationality, procedural impropriety

  • Municipal Council of Mombasa v Rep & Umona
    (2002) eKLR

    Judicial review supervises quasi-judicial bodies on process, not merits

  • Pastoli v Kabale District Local Government Council and others
    (2008) 2 EA 300

    Party must show illegality, irrationality or procedural impropriety to succeed in judicial review

  • Bukoba Gyukha Club
    (1963) EA 478

    Same principles on grounds for judicial review

  • Odhiambo Kidero and 4 others v Ferdinard Ndungu Waititu and 4 others
    (2014) eKLR

    Fair hearing requirements

  • Indru Ramchand Bharvani & others v Union of India and others
    (1988) SCR suppl 1.544 555

    Fair hearing has two justiciable elements: opportunity of hearing which must be reasonable

  • Lithotech exports (PTY) Ltd v Electoral Commission of Kenya
    (2007) eKLR

    Notice of motion incompetent where it departs from leave-stage documents (Nabuye J)

  • Judah Muthee Festus v Land Adjudication and Settlement Officer Tigania East and another; Joseph Mathira Ikirima (interested party)
    (2022) eKLR

    Defective notice of motion as abuse of process

  • Republic v Principal Secretary, Ministry of Internal Security and another exparte Schon Noorani & another
    (2018) eKLR

    Components/conditions for the grant of mandamus

  • Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others
    (2015) eKLR

    Doctrine of exhaustion: courts are a last resort where alternative dispute mechanisms exist

  • Mutanga Tea & Coffee Estate Co Ltd v Siakara Ltd and another
    (2015) eKLR

    Party must resort to constitutionally or statutorily prescribed mechanism before invoking court jurisdiction

  • Ransa Co Ltd v Manca Francesco & 2 others
    (2015) eKLR

    Judicial review is a sui generis, restrictive jurisdiction challenging process, not merits

  • Republic v Nairobi City Council exparte Gurcharn Singh Sihra & 4 others
    (2014) eKLR

    Purpose of judicial review is fair treatment; court cannot substitute its opinion for the decision-maker's

  • Republic v KRA exparte Yaya Towers Ltd
    (2008) eKLR

    Same purpose of judicial review, cited with approval in Sihra

  • Republic v Director of Immigration Services and 2 others exparte Olamilekan Gbenga Fasuyi & 2 others
    (2018) eKLR

    Judicial review concerns the decision-making process, not the decision itself; no appellate approach

  • Enton Njuki Makungo v Republic & 2 others
    (2014) eKLR

    Certiorari was not created to confer title to land

  • Nicholas Njeru v AG & 8 others
    (2013) eKLR

    Court's supervisory powers over inferior tribunals; scope of prohibition and mandamus

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

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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, "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.