Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedJudicial Review Application (Notice of Motion dated 10th January 2023)· [2024] KEELC 1371 (KLR)

Republic v Deputy County Commissioner, Makueni & 3 others; Matolo (Exparte Applicant) (Environment and Land Judicial Review Case E021 of 2022) [2024] KEELC 1371 (KLR)

Environment and Land Court
6 March 2024
4,908 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court dismissed a landowner's judicial review bid because he disagreed with the decision's outcome, not its process.

What this practically means

#

Executive summary

#
The Ex-parte Applicant, Robert Muli Matolo, moved the Court by Notice of Motion dated 10th January 2023 under Sections 8 and 9 of the Law Reform Act and Order 53 Rules 1 and 2 of the Civil Procedure Rules, seeking certiorari to quash the decision of the 1st Respondent in Minister's Appeal Case No. 85 of 1995 delivered on 5th December 2022 over land parcel Makueni/Kivani/1000, an order of prohibition against implementation of that decision, and mandamus compelling a rehearing. He complained that he was denied a fair hearing and that the appeal hearing was marred by procedural flaws. The Respondents and Interested Parties opposed, arguing inter alia that the application was time-barred, that the complaints went to the merits rather than the decision-making process, and that a title had since issued to the 1st Interested Party and been transferred to the 2nd Interested Party following a ruling in Makueni ELC OS No. 5 of 2019 removing the restriction on the property. The Court framed two issues: whether the appeal to the Minister was filed out of time, and whether the Applicant had made out a case for judicial review. It found the application was filed within the six-month limitation period for certiorari. On the merits, applying Pastoli and the Wednesbury principles, the Court held that Section 29 of the Land Adjudication Act leaves the procedure of the Minister's hearing to his discretion, that there was no evidence of bias, unfair treatment, or consideration of irrelevant factors, and that the Applicant was in truth aggrieved by the merits of the decision rather than the process. The Notice of Motion was accordingly dismissed with costs.

Key legal issues

#
01

Limitation - whether the certiorari application was filed within six months

Holding

The application filed on 10th January 2023 challenging a decision of 5th December 2022 was within the six-month period under Section 9(3) of the Law Reform Act and Order 53 Rule 2

Reasoning

The court noted that the provisions are in mandatory terms requiring applications for certiorari leave within six months. The impugned decision was made on 5th December 2022 and the motion filed on 10th January 2023, well within the stipulated timeframe, so the limitation objection by the Respondents failed.

p. 7
02

Whether the Minister's decision was vitiated by procedural impropriety or unfair hearing

Holding

No - there was no demonstration of bias, failure to observe natural justice, or consideration of irrelevant factors; the Minister considered relevant factors including the subsisting title and that the appeal was overtaken by events

Reasoning

Section 29(1)(b) of the Land Adjudication Act prescribes no particular hearing procedure, leaving procedural aspects to the Minister's discretion. The record showed the Applicant's representative attended and produced records; no particulars of the alleged natural justice violations were given, and no bias was alleged or demonstrated.

p. 9
03

Whether the Applicant's complaints disclosed a proper judicial review ground

Holding

No - the complaints were in substance about the merits of the decision, and judicial review does not lie on that basis

Reasoning

Applying Pastoli and the Wednesbury principles, the court held that the decision-maker considered relevant factors and there was no evidence of illegality, irrationality or procedural impropriety. The Applicant was in reality aggrieved by the outcome of the Minister's appeal, which is not a ground for judicial review intervention.

p. 10

Legal principles established

#
  • An applicant for judicial review must show that the decision complained of is tainted with illegality, irrationality or procedural impropriety
  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • An application for leave to apply for certiorari must be made within six months of the decision
  • Section 29(1) of the Land Adjudication Act leaves the procedure of the Minister's appeal hearing to the Minister's discretion

Court orders

#
  1. 1.The Notice of Motion dated 10th January 2023 is dismissed
  2. 2.Costs of the application to the Respondents/Interested Parties
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act and Order 53 Rules 1 and 2 of the Civil Procedure Rules, 2010 (supervisory jurisdiction in judicial review)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Deputy County Commissioner, Makueni & 3 others; Matolo (Exparte Applicant) (Environment and Land Judicial Review Case E021 of 2022) [2024] KEELC 1371 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 10th January 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1371/eng@2024-03-06

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