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ELCPartially AllowedJudicial Review Application E001 of 2023· [2023] KEELC 20512 (KLR)

Mbaabu v Cabinet Secretary in Charge of Lands & 5 others

Environment and Land Court
4 October 2023
5,298 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's land ministry cannot take away part of your land without giving written reasons and hearing you first — courts will overturn such decisions.

What this practically means

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Executive summary

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The ex parte applicant sought certiorari, prohibition and mandamus to quash a decision of the Deputy County Commissioner (acting for the Cabinet Secretary) dated 8.12.2022 in Minister's Appeal No. 297 of 2020, which ordered Parcel No. 872 Ruiri/Rwarera to be subdivided equally between him and the 6th respondent, each taking 5 acres. The applicant, who had been found by the land adjudication officer to be an innocent purchaser for value following disallowed objections, argued the Minister's decision was irrational, unsupported by evidence, made without written reasons and without hearing him on the subdivision, violating Articles 40, 47 and 50. The respondents and the 6th respondent maintained the appeal was lawfully determined under Sections 26 and 29 of the Land Adjudication Act and Section 7(2) of the Fair Administrative Action Act, and that the applicant failed to demonstrate ulterior motive. The court restated the supervisory scope of judicial review post-2010, anchored in Article 47 and the FAAA. It found the 6th respondent had sought the entire land, produced no demarcation records, and that the Minister, having found the applicant an innocent buyer, gave no reasons for awarding him half the land. That failure breached Article 47(2), Section 4(4)(d) FAAA and natural justice, amounting to excess of jurisdiction and gross unreasonableness. The court quashed the decision and remitted the appeal for re-hearing by a different officer within three months, with costs to the applicant. Prohibition and mandamus were not expressly granted.

Key legal issues

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01

Whether the Minister's decision was lawful, reasonable and procedurally fair

Holding

The decision was made in excess of jurisdiction, in breach of natural justice, and was unreasonable and in defiance of logic; it was quashed

Reasoning

The Minister found the applicant an innocent buyer yet ordered half the land to the 6th respondent without stating reasons. The 6th respondent sought the entire land, not a subdivision, and produced no demarcation records. The decision lacked evidentiary nexus and violated Article 47(2) and Section 4(4)(d) of the FAAA.

02

Whether the applicant was denied the constitutional right to protection of property

Holding

Yes - deprivation of half the land without justification or compensation violated Article 40 and Article 47

Reasoning

Having found the applicant an innocent purchaser for value, the decision-maker could not deprive him of half the land without written reasons or compensation. State organs must respect, protect and fulfil rights under Article 21(1).

p. 8
03

Scope of judicial review after the Constitution 2010

Holding

Judicial review examines legality, irrationality and procedural impropriety of the decision-making process, not the merits

Reasoning

The court restated the Wednesbury/Pastoli principles: a review court is supervisory, concerned only with lawfulness of process, and should not adopt an appellate approach. Post-2010, judicial review is anchored in Article 47 and the FAAA alongside the Law Reform Act and Order 53.

p. 7

Legal principles established

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  • An administrative organ adversely affecting a person's property rights must give written reasons for the action under Article 47(2) of the Constitution
  • Where an administrator fails to furnish reasons for an administrative action, it is presumed the action was taken without good reasons
  • A party must be heard before a drastic administrative decision such as subdivision of their land is taken

Court orders

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  1. 1.An order of certiorari quashing the decision dated 8.12.2022 ordering that Parcel No. 872 Ruiri/Rwarera be divided equally between the exparte applicant and the 6th respondent
  2. 2.The Minister's appeal is remitted for re-hearing by a different officer within three months from the date of the judgment
  3. 3.Costs to the exparte applicant

Authorities

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Legislation

  • Land Adjudication Act (Cap 284)Sections 26, 29(1), 29(3), 29(4)
  • Fair Administrative Action ActSections 4(4)(d), 6, 7(2)(b), 7(2)(e)
  • Constitution of Kenya 2010Articles 21(1), 40, 47, 50
  • Law Reform Act
  • Civil Procedure RulesOrder 53
  • Judicature Act

Cases cited (26)

  • Raila vs Independent Electoral and Boundaries Commission (2017) eKLR

    Parties are bound by pleadings; issues flow from pleadings in adversarial systems

  • Odd Jobs vs Mubia (1970) E.A 470

    Court may determine matters on evidence placed before it even if not pleaded, in exceptional cases

  • Republic vs. Public Procurement Administrative Review Board and 22 others exparte Pelt Security Services Ltd (2018) eKLR

    Definition of unreasonableness in judicial review

  • Republic vs Public Procurement Administrative Review Board and others exparte Rongo University (2018) eKLR

    Rational justifiability of administrative decisions; supervisory role of review courts

  • Carephone (pty) Ltd vs Marcus No. 1999 (3) S.A 304 (LAC)

    Whether outcome is rationally justifiable given reasons

  • Pastoli vs. Kabale District Local Government Council and another (2008) 2 E.A 300

    Grounds for judicial review: illegality, irrationality, procedural impropriety

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

    Cited by 6th respondent on requirements for mandamus

  • Halsbury's Law of England 4th Edition Vol. 1 (1) Paragraph 12 page 270

    Cited by 6th respondent on judicial review principles

  • Commissioner of Lands vs Kunste Hotel Ltd (1997) eKLR

    Purpose of judicial review is to ensure fair treatment by authorities

  • P.V Society of State for Education & Science Exparte Avon County Council (1991) 1 ALL ER 292

    Judicial review tackles errors of law, procedural impropriety, irrationality, abuse of power

  • Meshack Agengo Omondi vs Eldoret Municipal Council & another (2012) eKLR

    Post-2010 compensatory and declaratory remedies in judicial review

  • Professor Elijah Biama vs. University of Eldoret and other (2014) eKLR

    Judicial review favours universal approach to constitutional rights

  • Cortec Mining (K) Ltd vs Ministry of Mining and 9 others (2017) eKLR

    Scope of judicial review after 2010; illegality, irrationality, procedural impropriety

  • Republic vs. AG & 4 others exparte Diamond Hashim Lalji & another (2014) eKLR

    Court will not interfere where process was proper and decision within the law

  • Republic vs National Water Conservation and Pipeline Corporation & Exparte Roshina Timber Mart (2009) eKLR

    Review court without illegality, irrationality or impropriety should down its tools

  • Onyango Oloo vs AG (1989) C.A

    Presumption that rules of natural justice apply; breach renders decision void ab initio

  • Ransa Co. Ltd vs Manco Francesco & 2 others (2015) eKLR

    Judicial review exercises restrictive sui generis jurisdiction

  • Enton Njuki Makungo vs Republic & others (2014) eKLR

    Judicial review not established to confer title to land

  • Makenge vs Ngochi (1979) KLR 53

    Cited on right to be heard in land adjudication appeals

  • Republic vs Mwingi District Commissioner & 2 others exparte Mutinda Mwangangi (2014) eKLR

    Cited on fair hearing requirements

  • Republic vs Minister for Land & another exparte Bonface Njeru Ngari & another (2013) eKLR

    Cited on land adjudication appeals

  • Jasper Maluki Kitavi vs. Minister for Land, Settlement & Physical Planning & another (2017) eKLR

    Cited with approval on rules of natural justice

  • JSC vs. Mbalu Mutava & another (2015) eKLR

    Rules of natural justice require a body to act fairly

  • Rudge vs. Baldwin (1964) AC 40

    Rules of natural justice require a body to act fairly

  • Associated Provincial Picture Houses Ltd vs Wednesbury Corporation (1948) 1 K.B 223

    Test for gross unreasonableness in administrative decisions

  • OJSC Machines Ltd, Transcentury Limited and Civicon Limited (Consortium) vs Public Procurement Administrative Review Board of Kenya & 2 others (2017) eKLR

    Purpose of judicial review is to prevent statutory bodies injuring citizens' rights

Jurisdiction invoked
Judicial review under Article 47 of the Constitution, the Fair Administrative Action Act and 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, "Mbaabu v Cabinet Secretary in Charge of Lands & 5 others", Case Analysis (2023). Judicial Review Application E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20512/eng@2023-10-04

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