Republic v Deputy County Commissioner Buuri East Sub-County & 2 others; Kathuri & 2 others (Interested Parties); Tirindi (Exparte Applicant) (Environment and Land Judicial Review Case E004 of 2023) [2024] KEELC 59 (KLR)

The court examined the record of the three appeals and found only witness statements, cross-examination, findings and ruling, with no analysis of facts, no particulars of the scene visit and no written reasons. The 1st respondent did not refute the averments that the scene visit was not conducted fairly, having failed to avail her proceedings or records. Such omissions breached Section 4 of the Fair Administrative Action Act and Article 47.

The court held that Section 7(1) and (11) of the Fair Administrative Action Act requires a decision to give reasons and justification, and to balance interests properly. The replying affidavit of Josephine Njenga did not demonstrate that the decision-making process met the proportionality test. Citing Suchan Investments and the Wednesbury principles as adapted by Kenyan courts, the court found the decision failed all three proportionality tests.

The court reviewed authorities establishing that judicial review examines lawfulness, fairness, reasonableness and legality rather than the wisdom of the decision. However, Article 47 and Section 7(2)(f) of the Fair Administrative Action Act shifted judicial review to include excerpts of merit review, including abuse of discretion, so the court could evaluate the decision's merits where proportionality is in issue.

Section 29 of the Land Adjudication Act must be read alongside the Fair Administrative Action Act and the constitutional framework on fair administrative action. The Minister has a wide latitude in conducting appeals so long as substantive justice is met, but must consider the grounds of appeal, the record, and give reasons for disagreeing with previous findings.