Republic v Inspector General of Police of the National Police Service & 2 others; NCBA Bank Kenya PLC (Exparte Applicant); Ahmed (Interested Party)
The bottom line
#NCBA lost its bid to force Mombasa's Land Registrar to register an auctioned property because the court said disputed fraud claims belong in a civil suit, not judicial review.
What this practically means
#Executive summary
#Key legal issues
#Whether judicial review can resolve contested questions of fact
No - the court lacks jurisdiction to determine contested facts in judicial review proceedings
The court adopted the principle from Seventh Day Adventist Church and Commissioner of Lands v Kunste Hotel that judicial review concerns the decision-making process, not private rights or merits. The 1st Respondent's letter of 20 March 2017 indicated the property was under investigation for conspiracy to defraud and forgery, raising contested factual matters that cannot be resolved through judicial review but must be ventilated in ordinary civil suits.
Whether the Applicant was exempted from exhausting alternative remedies
No - the Applicant failed to demonstrate exceptional circumstances justifying exemption under Section 9(4) of the Fair Administrative Action Act
Section 9(2) of the Fair Administrative Action Act bars review of administrative action unless available remedies are first exhausted, with an exemption only in exceptional circumstances under Section 9(4). The onus lay on the Applicant to justify exemption. Given the contested factual issues raised by the police letter, the court found the proceedings prematurely instituted and declined to exercise its discretion in the Applicant's favour.
Whether the judicial review orders sought should issue as a matter of course
No - certiorari and other judicial review orders are discretionary remedies
Relying on Halsbury's Laws of England and Bluesea Shopping Mall Limited, the court held that judicial review orders are discretionary and may be refused even where grounds exist, though such discretion must be exercised sparingly. Since the proceedings were premature and involved contested facts, the court declined to grant the orders sought.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision; a court cannot act as an appellate court over the decision-maker
- Where an applicant brings judicial review proceedings to determine contested matters of fact, the court lacks jurisdiction and parties must litigate in ordinary civil suits
- Under Section 9(2) of the Fair Administrative Action Act, a court shall not review an administrative action unless internal mechanisms and all remedies under other written law are first exhausted
Court orders
#- 1.The application dated 26th May 2022 is dismissed
- 2.Costs of the application awarded to the Respondents
- Jurisdiction invoked
- Order 53 Rule 1(2) & 1(4) of the Civil Procedure Rules, 2010; Fair Administrative Action Act, No 4 of 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Inspector General of Police of the National Police Service & 2 others; NCBA Bank Kenya PLC (Exparte Applicant); Ahmed (Interested Party)", Case Analysis (2023). Environment and Land Judicial Review Case E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18155/eng@2023-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.