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ELCDismissedJudicial Review application (Notice of Motion dated 14th November 2022)· [2024] KEELC 3754 (KLR)

Republic v The Minister for Lands and Settlement & another Ex-Parte Jackson Nyamai Waita

High Court of Kenya
24 April 2024
3,121 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 landowner's judicial review bid because he filed nearly two months past the six-month legal deadline and simply disagreed with the decision's outcome.

What this practically means

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Executive summary

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The Ex-parte Applicant, Jackson Nyamai Waita, moved the High Court by Notice of Motion dated 14th November 2022 seeking certiorari to quash the decision of the Minister (1st Respondent) in Minister's Appeal Case No. 136 of 2016 delivered on 17th March 2022 concerning Parcel No. 3303 Wautu Adjudication Section, prohibition against implementation of that decision, and mandamus compelling issuance of a title deed to him. He alleged he was not accorded a fair hearing and that the Minister did not arrive at an independent decision. The Respondents objected on jurisdictional grounds and on limitation under Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, while the Interested Party maintained both parties were heard and that earlier litigation relied on by the Applicant did not concern the suit property. The court framed two issues: timeliness and entitlement to judicial review orders. It found the application, filed seven months and 25 days after the decision, was out of time in breach of the mandatory six-month period. On the merits of the review complaint, the court perused the Minister's appeal record and found the Applicant had testified, cross-examined and called witnesses, and that there was no evidence of bias, unfairness, or consideration of irrelevant matters. The Applicant was in reality aggrieved by the merits - the Minister had overturned a decision in his favour - making the application an appeal disguised as judicial review. The Notice of Motion was dismissed with costs.

Key legal issues

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01

Limitation for applications for certiorari

Holding

The application filed seven months and 25 days after the impugned decision was out of time and timeous leave could not be granted.

Reasoning

Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules mandate that an application for leave to apply for certiorari be made within six months of the impugned decision. The decision was delivered on 17th March 2022 and the application filed on 1st November 2022, well outside the period, in mandatory terms.

p. 4
02

Whether the Applicant was accorded a fair hearing before the Minister

Holding

Both parties participated fully in the Minister's appeal; there was no evidence of bias, unfairness or failure to consider relevant matters.

Reasoning

The record of Minister's Appeal Case No. 136 of 2016 showed both parties were sworn, gave evidence, cross-examined witnesses and called witnesses. The court found no evidence of bias or unfair treatment and no demonstration that the Minister considered irrelevant matters or ignored relevant ones.

p. 6
03

Whether judicial review remedies lie where the grievance is with the merits

Holding

The Applicant's complaints were directed at the merits of the decision; judicial review was not available for an appeal disguised as a judicial review.

Reasoning

Relying on established authority, the court held that judicial review examines the decision-making process, not the merits. Since the Applicant was aggrieved that the Minister overturned an earlier decision in his favour, the proper avenue was an appeal, not judicial review.

p. 7

Legal principles established

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  • An application for an order of certiorari must be made not later than six months after the date of the judgment, order, decree, conviction or other proceedings.
  • Judicial review is concerned with the decision-making process, not the merits of the decision itself.
  • To succeed in judicial review an applicant must show illegality, irrationality or procedural impropriety.

Court orders

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  1. 1.The Notice of Motion dated 14th November 2022 is dismissed with costs.
Jurisdiction invoked
Order 53 Rules 1(1), 1(2), 1(4) of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Law Reform Act

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 The Minister for Lands and Settlement & another Ex-Parte Jackson Nyamai Waita", Case Analysis (2024). Judicial Review application (Notice of Motion dated 14th November 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3754/eng@2024-04-24

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