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ELCDismissedJudicial Review (Notice of Motion dated 29th June 2021)· [2024] KEELC 952 (KLR)

Republic v Deputy County Commissioner, Mukaa Sub-County; Muema (Interested Party); Kyengo (Exparte Applicant) (Environment and Land Judicial Review Case E005 of 2021) [2024] KEELC 952 (KLR)

High Court of Kenya
21 February 2024
TMT. Murigi
3,786 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a land dispute challenge because the applicant had already been fairly heard and was really unhappy with the decision itself, not the process.

What this practically means

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Executive summary

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The Ex-parte Applicant, son of the late Simon Kyengo Mbuvi, sought an order of certiorari to quash the judgment of the Deputy County Commissioner for Mukaa Sub-County in Appeal to the Minister Case No. 282 of 1997 delivered on 13/1/2021, which awarded Plot No. 1556 to the estate of David Kimuli Muema, represented by the Interested Party. He alleged breach of natural justice: that the Respondent insisted on hearing the appeal despite a letter of reservations dated 8/10/2019, imposed George Kangethe Maweu as his witness without consent, misrecorded his questions, and conducted a biased hearing. The Interested Party asserted the proceedings were fair, that the complaint was withdrawn by a letter dated 5/3/2020 (Exhibit 'JMD1'), and that COVID-19 protocols explained attendance limitations. The Respondent submitted that judicial review concerns process, not merits, and that the Applicant was heard fully. The court framed a single issue: whether the decision was made in breach of the principles of natural justice. Applying Article 47 and 50 of the Constitution, Section 4 of the Fair Administrative Action Act, and established authorities on the scope of judicial review, the court found the Applicant participated fully - testifying, cross-examining, and calling a witness - and had withdrawn his complaint against the Respondent without controverting the withdrawal letter. No evidence of bias or unfairness was found. The court concluded the application was in reality an appeal disguised as judicial review, dismissed the Notice of Motion dated 29th June 2021 with costs.

Key legal issues

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01

Whether the proceedings before the Deputy County Commissioner breached the principles of natural justice

Holding

No breach: the Applicant testified, cross-examined, called a witness, and withdrew his letter of reservations against the Respondent before the hearing

Reasoning

The court perused the Minister's appeal proceedings and found the Applicant participated fully by giving evidence, cross-examining the Appellant's witness and calling witnesses. The letter of 5/3/2020 withdrawing the complaint was not controverted, and no evidence established forgery. The complaint of bias and the imposed witness were unsupported by affidavit evidence.

p. 7
02

Whether the application was a legitimate judicial review or a disguised appeal

Holding

It was a disguised appeal against the merits of the decision and thus not a proper subject of judicial review

Reasoning

The court found the Applicant's complaints, considered as a whole, showed grievance with the merits (the Minister overturning an earlier decision in his father's favour) rather than with the decision-making process. Judicial review examines process, not merits, so the remedy was unavailable.

p. 8

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision; a party aggrieved by the merits cannot disguise an appeal as a judicial review application
  • A denial of the right to be heard renders a decision null and void, but the court will not intervene unless illegality, irrationality or procedural impropriety is clearly demonstrated

Court orders

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  1. 1.The Notice of Motion dated 29th June 2021 is dismissed with costs

Authorities

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Legislation

  • Law Reform ActSections 8, 9
  • Civil Procedure RulesOrder 53 Rule 3(1), Order 53 Rule 4, Order 51 Rule 4
  • Constitution of Kenya, 2010Articles 47(1) and (2), 50(1)
  • Fair Administrative Action ActSection 4(3)(b)
  • Land Adjudication ActSection 29

Cases cited (9)

  • Judicial Service Commission v Mbalu Mutava & another
    [2015] eKLR
  • Dry Associates Limited v Capital Markets Authority & another, Interested Party Crown Berger (K) Ltd
    [2012] eKLR
  • Pastoli Vs Kabale District Local Government Council and Others
    (2008) 2 E.A 300
  • Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd
    C.A Civil Appeal No. 185 of 2001
  • Republic Vs Kenya Revenue Authority Exparte Yaya Towers Limited
    (2008) eKLR
  • Onyango Oloo Vs Attorney General
    [1986-1989] EA 456
  • Kenya Revenue Authority & 2 others v Darasa Investments Limited
    [2018] eKLR
  • Republic Vs Secretary of the Firearms Licensing Board & 2 Others Ex parte Senator Johnstone Muthama
    [2018] eKLR
  • Associated Provincial Picture Houses Ltd vs. Wednesbury Corporation
    [1948] 1 KB 223
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act and Order 53 Rule 3(1) 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 Deputy County Commissioner, Mukaa Sub-County; Muema (Interested Party); Kyengo (Exparte Applicant) (Environment and Land Judicial Review Case E005 of 2021) [2024] KEELC 952 (KLR)", Case Analysis (2024). Judicial Review (Notice of Motion dated 29th June 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/952/eng@2024-02-21

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