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ELCDismissedEnvironment and Land Judicial Review Case E004 of 2022· [2023] KEELC 18155 (KLR)

Republic v Inspector General of Police of the National Police Service & 2 others; NCBA Bank Kenya PLC (Exparte Applicant); Ahmed (Interested Party)

Environment and Land Court of Kenya
21 June 2023
2,856 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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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

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Executive summary

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NCBA Bank Kenya PLC, as ex parte applicant, sought judicial review orders (certiorari, mandamus, prohibition and a declaration) against the Land Registrar, Mombasa for refusing to register a transfer of subdivision number 1285, Section 1 Mainland North, Mombasa (CR 14211), sold by public auction on 9 April 2021 for Kshs 45,000,000 to Beatriwan Investments Limited pursuant to the bank's statutory power of sale. The Registrar relied on a letter dated 20 March 2017 from the Inspector General of Police indicating the property was among parcels under investigation for conspiracy to defraud and forgery. The bank argued the letter imposed no restriction and that the refusal violated its constitutional rights to property, fair administrative action and fair hearing. Justice N.A. Matheka restated that judicial review concerns the decision-making process, not the merits, and that a court cannot act as an appellate court over the decision-maker. The court found the police letter raised contested matters of fact - alleged fraud and forgery - which judicial review proceedings cannot resolve. Applying Section 9(2) of the Fair Administrative Action Act, the court held the Applicant bore the onus of justifying exemption from exhausting alternative remedies and failed to do so. The proceedings were found prematurely instituted, and the court declined to exercise its discretion in the Applicant's favour, directing parties to ordinary civil suits for contested factual disputes. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether judicial review can resolve contested questions of fact

Holding

No - the court lacks jurisdiction to determine contested facts in judicial review proceedings

Reasoning

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.

02

Whether the Applicant was exempted from exhausting alternative remedies

Holding

No - the Applicant failed to demonstrate exceptional circumstances justifying exemption under Section 9(4) of the Fair Administrative Action Act

Reasoning

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.

p. 5
03

Whether the judicial review orders sought should issue as a matter of course

Holding

No - certiorari and other judicial review orders are discretionary remedies

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 26th May 2022 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 53 Rule 1(2) & 1(4)
  • Constitution of Kenya, 2010Articles 40(1) and (2), 47 and 50
  • Fair Administrative Action Act, No 4 of 2015Section 4(1), (2) & (3); Section 9(2), (3) and (4)

Cases cited (9)

  • Municipal Council of Mombasa v Republic Umoja Consultants Ltd
    Nairobi Civil Appeal No 185 of 2007 (2002) eKLR

    Judicial review concerns the process leading to the decision, not the merits; the court is not an appeal court over the decider

  • Associated Provincial Picture Houses, Ltd. v Wednesbury Corporation
    (1947) 2 All ER 680

    Exceptional circumstances in which a court may consider the merits of a decision

  • Republic v Public Procurement Administrative Review Board & 2 others Ex Parte - Sanitam Services (EA) Limited
    (2013) eKLR

    Purpose of judicial review remedies is fair treatment, not substituting the court's opinion for the administrative body's

  • Seventh Day Adventist Church (East Africa) Limited v Permanent Secretary, Ministry of Nairobi Metropolitan Development & another
    (2014) eKLR

    Court lacks jurisdiction in judicial review to determine contested matters of fact

  • Commissioner of Lands v Kunste Hotel Limited
    (1997) eKLR (E & L) 1

    Judicial review is concerned with the decision-making process, not private rights or merits

  • Republic v Inland Revenue Commissioner Ex Parte Opman International
    1986 1 ALL ER 328

    Judicial review is a procedure of last resort available where alternative procedures do not achieve just resolution

  • Speaker of National Assembly v Karume
    CA Civil Application No 92 of 1992 (2008) 1 KLR 426

    Where there is a clear procedure to address a grievance, it should be followed

  • Bluesea Shopping Mall Limited v City Council of Nairobi & Others
    CA Civil Appeal No 129 of 2013 (Nairobi)

    Courts have discretion to withhold judicial review remedies, to be sparingly exercised

  • Republic v Registrar of Societies & 3 others ex parte Lydia Cherubet & 2 others
    Miscellaneous Civil Application 170 of 2016

    Decrying bringing claims through judicial review that require determinations on the merits

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

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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 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.