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ELCDismissedEnvironment and Land Judicial Review Case E015 of 2022· [2023] KEELC 21733 (KLR)

Republic v Cabinet Secretary for Lands Housing and Physical Planning & 3 others; Ngunyu (Exparte Applicant); Mutungi (Interested Party)

Environment and Land Court
15 November 2023
TMT. W. Murigi
2,736 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a landowner's bid to overturn a land adjudication decision, confirming that judicial review cannot be used to relitigate ownership disputes.

What this practically means

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Executive summary

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The Ex-parte Applicant, administrator of the estate of her late husband, sought certiorari to quash the Deputy County Commissioner, Kilungu Sub-County's decision of 30/06/2022, prohibition against its implementation, and mandamus compelling the Respondents to implement the judgment in Kilungu Civil Case No. L8 of 1980, which she said had confirmed her late husband's ownership of part of the disputed land. She alleged the decision was ultra vires, irrational and procedurally improper, and that the decision-maker failed to visit the land or analyse her evidence. The Respondents, through the officer in charge of Land Adjudication and Settlement, maintained that Parcel No. 1822 Nduu Adjudication Section was lawfully adjudicated and awarded to the Interested Party, that the Applicant's cases before the Committee, Arbitration Board, Objection and Appeal were dismissed, and that due process was followed. The Interested Party argued the application was a defective appeal against the appeals committee decision. The court framed a single issue: whether the 3rd Respondent acted ultra vires in deciding Appeal Case No. 446 of 2021 in light of the 1980 judgment. Applying the Diplock principles and the process-versus-merits distinction, the court found the 3rd Respondent had power under Section 29 of the Land Adjudication Act, that the Applicant participated fully and was heard, that no bias or irrelevant considerations were shown, and that her real complaint was a factual ownership dispute outside judicial review. The Notice of Motion was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the 3rd Respondent acted ultra vires in deciding Appeal Case No. 446 of 2021 despite the 1980 Kilungu court judgment

Holding

No. The 3rd Respondent had power under Section 29 of the Land Adjudication Act, accorded the applicant a fair hearing, considered the 1980 judgment, and no illegality, irrationality or procedural impropriety was demonstrated.

Reasoning

The court found the applicant participated fully in the adjudication proceedings from Committee stage to the Minister's appeal, gave sworn evidence and cross-examined witnesses, and produced the 1980 judgment. There was no evidence of bias, irrelevant considerations or failure to consider relevant matters. Ownership determination is a factual issue for the adjudication process, not judicial review.

p. 5
02

Whether the application improperly seeks a merits review of the Minister's decision

Holding

Yes; the applicant in substance seeks a determination of ownership in her favour, which is a factual matter outside judicial review.

Reasoning

Relying on Municipal Council of Mombasa v Republic, the court held that judicial review examines the process, not the merits. The applicant's real grievance was ownership of Parcel No. 1822, which she had the opportunity to litigate before the tribunal and appeal organs.

p. 5

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision; the court cannot act as an appeal court over the decision-maker
  • An applicant for judicial review must show the decision is tainted with illegality, irrationality or procedural impropriety
  • A court will hardly intervene in administrative decisions unless the decision-maker acted on no evidence, took into account irrelevant considerations or omitted relevant factors

Court orders

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  1. 1.The Notice of Motion dated 28th October, 2022 is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 3, 4, 5, 6 and 7
  • Constitution of KenyaArticle 165(6) as read with (7)
  • Land Adjudication ActSection 29
  • Fair Administrative Action ActSection 7

Cases cited (8)

  • Council of Civil Service Union & Others v the Minister for Civil Service
    [1985] AC 374

    Lord Diplock's three heads of judicial review: illegality, irrationality, procedural impropriety

  • Okoiti & 3 Others v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 5 Others (Petition 42 & 27 of 2014 (Consolidated))
    [2021] KEELRC 2306 (KLR)

    What amounts to an ultra vires act

  • Republic v Secretary of the Firearms Licensing Board & 2 others ex-parte: Senator Johnson Muthama
    [2018] eKLR

    Acting without jurisdiction or ultra vires renders a decision illegal

  • Pastoli v Kabale District Local Government Council & others
    [2008] 2 EA 300

    Applicant must show illegality, irrationality or procedural impropriety

  • Municipal Council of Mombasa v Republic & Another
    [2002] eKLR

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

  • Kenya Revenue Authority & 2 Others v Darasa Investments Limited
    [2018] eKLR

    Relevant considerations and reasonableness; Wednesbury unreasonableness

  • Associated Provincial Picture Houses Ltd v. Wednesbury Corporation
    [1948] 1 KB 223

    Discretion must be directed properly in law, considering relevant and excluding irrelevant matters

  • Republic and Others v Attorney General and Another
    [2006] 2 EA 265 (HCK)

    Taking into account an irrelevant consideration invites judicial review intervention

Jurisdiction invoked
Article 165(6) as read with Article 165(7) of the Constitution; Order 53 Rules 3, 4, 5, 6 and 7 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, "Republic v Cabinet Secretary for Lands Housing and Physical Planning & 3 others; Ngunyu (Exparte Applicant); Mutungi (Interested Party)", Case Analysis (2023). Environment and Land Judicial Review Case E015 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21733/eng@2023-11-15

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