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ELCDismissedJudicial Review E008 of 2022· [2023] KEELC 20160 (KLR)

Nabea v Tigania East District Land Adjudication and Settlement Officer & another; Muriungi (Interested Party)

Environment and Land Court at Meru
27 September 2023
7,197 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~29 min to read original · ~4 min brief

The bottom line

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The court refused to overturn a land adjudication decision, confirming that judicial review challenges the fairness of the process, not who should win.

What this practically means

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Executive summary

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The ex-parte applicant sought an order of certiorari to quash the decision of the Tigania East District Land Adjudication and Settlement Officer dated 5th July 2022 in objection No. 42 over land parcel No. 9957, Karama Adjudication Section. The dispute followed an earlier judicial review (Meru ELC JR No. 22 of 2017) in which the court remitted the matter for a fresh hearing. After the rehearing, the adjudication officer decided in favour of the interested party, whose late husband's name remained on the register, with compensation to be assessed for the applicant's crops. The applicant alleged bias, collusion between the officer and the interested party, failure to consider evidence and customary law, and non-participation of the adjudication committee contrary to section 26 of the Land Consolidation Act. The respondents and the interested party countered that the application attacked the merits of the decision, that judicial review is supervisory only, and that no illegality, irrationality or procedural impropriety was proved. The court framed two issues: whether the respondents exercised their statutory duties in accordance with the law, and whether judicial review orders were available. Applying Gathenji, Municipal Council of Mombasa and Suchan Investments, the court acknowledged the post-2010 proportionality shift towards merit review but held that the reviewing court cannot substitute its own decision. It found the hearing fair, the parties heard, and the allegations of bias and collusion unsubstantiated. The notice of motion was dismissed with costs to the respondents and the interested party.

Key legal issues

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01

Whether the 1st respondent exercised his statutory duties in accordance with the law

Holding

The 1st respondent conducted the objection hearing in accordance with the law, gave all parties a hearing and gave reasons for his findings; the process was fair, objective and procedural

Reasoning

The court found that the applicant and his witnesses were heard, the interested party also testified, and the 1st respondent gave reasons for his findings which were neither unreasonable nor disproportionate. Allegations of bias, collusion and failure to appreciate evidence or customary law were general accusations unsupported by evidence, and the burden of proof under section 108 of the Evidence Act lay on the applicant.

p. 10
02

Whether the orders of judicial review (certiorari) were available to the ex-parte applicant

Holding

No - the applicant's complaints went to the merits of the decision, not the decision-making process, and judicial review remedies are discretionary

Reasoning

Relying on Gathenji, Municipal Council of Mombasa, Suchan Investments and other authorities, the court held that judicial review is supervisory and not an appeal. The applicant's grounds - that the decision varied with the evidence and ignored customary law - attacked the merits. The court acknowledged the proportionality shift under the Fair Administrative Action Act but found no procedural defect justifying intervention.

p. 12

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision; the role of the court is supervisory, not appellate
  • Post-2010, proportionality under section 7(2) of the Fair Administrative Action Act introduces a shift towards merit consideration in statutory judicial review, but the reviewing court has no mandate to substitute its own decision for that of the administrator
  • Certiorari will issue where a decision is without jurisdiction, in excess of jurisdiction, or where rules of natural justice are not adhered to
  • Allegations of bias and collusion must be proved by evidence; a decision against a party does not by itself establish bias

Court orders

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  1. 1.The notice of motion dated 2nd March 2023 is dismissed with costs to the respondents and the interested party

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Land Consolidation ActCap 283, sections 26(1), 26(3)
  • Land Adjudication ActCap 284, sections 26, 29
  • Fair Administrative Action Actsections 7, 7(2)(i)
  • Evidence Actsection 108

Cases cited (16)

  • Patoli Vs Kabale District Local Government Council & others
    (2008) 2 EA 300

    Grounds for judicial review: illegality, irrationality and procedural impropriety

  • Nkonyai (suing as the legal representative of the estate of M'Thiringi M'anampiu (deceased) & 2 others Vs District Land Adjudication and Settlement Officer Karama Adjudication Section & another
    Environment and Land Judicial Review Case No. E010 of 2021 (2022) KEELC 2614 (KLR)

    Relied on by the ex-parte applicant

  • Republic Vs Anti-counterfeit Agency Exparte Caroline Mangala t/a Hair works Saloon
    [2019] eKLR

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

  • Republic Vs Public Procurement Administrative Review Board & 3 others Ex-parte Saracean Media Limited
    (2018) eKLR

    Relied on by the respondents

  • Republic Vs National Transport & Safety Authority & 10 others ex-parte James Maina Muga
    (2015) eKLR

    Allegations must be proved; rebuttable assertions require full hearing

  • Republic Vs Tigania East District Land Adjudication and Settlement Officer and another, Joseph Mathita Ikirima Exparte Solomon Mworia Samuel
    [2020] eKLR

    Compliance with adjudication procedure

  • John Florence Maritime Services Limited & another Vs Cabinet Secretary Transport and Infrastructure & 3 others
    (Petition 17 of 2015) (2021) KESC 39 (KLR)

    Judicial review remedy concerns the decision-making process, not the merits

  • Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001 (2002) eKLR

    Judicial review is supervisory, not appellate; court should not act as a court of appeal over the decider

  • Republic Vs Kenya National Examination Council Ex-parte Gathenji and others
    Civil Appeal No. 266 of 1996

    Principles for grant of certiorari and scope of judicial review

  • Suchan Investment Limited Vs The Ministry of National Heritage & Culture & others
    (2016) eKLR

    Proportionality under FAA Act introduces merit consideration; power to remit belongs to the administrator's domain

  • M'Bita Ntiro V Mbae Mwirichia & another
    [2018] eKLR

    Burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence

  • Zachariah Wagunza & another Vs Office of the Registrar, Academic Kenyatta University & 2 others
    [2013] eKLR

    Broad grounds for exercise of judicial review jurisdiction

  • Republic Vs Director of Immigration Services & 2 others Exparte Olamilekan Gbenga Fasuyi & 2 others
    [2018] eKLR

    Judicial review is supervisory, not an appeal; court will not interfere where process is proper

  • Chief Constable of the North Wales Police Vs Evans
    (1982) 1 WLR 1155

    Judicial review is not an appeal but a review of the manner in which the decision was made

  • Commissioner of Lands Vs Kunste Hotel Limited
    [1997] eKLR

    Judicial review concerns the decision-making process, ensuring fair treatment by the authority

  • R V Home Secretary; ex parte Daly
    [2001] 2 AC 532

    Proportionality as an independent ground of judicial review

Jurisdiction invoked
Judicial review jurisdiction under Article 47 of the Constitution and the Fair Administrative Action Act, 2015; leave granted on 15th February 2023

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, "Nabea v Tigania East District Land Adjudication and Settlement Officer & another; Muriungi (Interested Party)", Case Analysis (2023). Judicial Review E008 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20160/eng@2023-09-27

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