Nabea v Tigania East District Land Adjudication and Settlement Officer & another; Muriungi (Interested Party)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st respondent exercised his statutory duties in accordance with the law
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
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.
Whether the orders of judicial review (certiorari) were available to the ex-parte applicant
No - the applicant's complaints went to the merits of the decision, not the decision-making process, and judicial review remedies are discretionary
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 2nd March 2023 is dismissed with costs to the respondents and the interested party
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.