Republic v Nzunguli & 5 others; Nguni (Exparte) (Judicial Review E001 of 2023) [2024] KEELC 4161 (KLR)
The bottom line
#A Kitui court struck a private individual out as a respondent in a land judicial review, ruling only administrators—decision-makers—can be sued, though he stays as an interested party.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Respondent is amenable to judicial review as an administrator
He is not, as he made no findings, rendered no decision and took no administrative action; he was merely a party to the appeal to the Minister
The court examined the Fair Administrative Action Act definitions of 'administrative action' and 'administrator' post-Article 47 of the 2010 Constitution. It reviewed the pleadings and the record of Appeal to the Minister case No. 35 of 2000 and found the 1st Respondent nowhere made findings or decisions; hence he cannot be a proper respondent in judicial review proceedings, though he may join as an interested party.
Whether the 1st Respondent may be joined as an interested party
Yes; the court directed the ex parte applicant to amend to join him as an interested party under Order 53 rules 2 and 4
Relying on the Supreme Court's decision in Methodist Church in Kenya v Mohamed Fugicha, the court distinguished principal parties from interested parties, noting an interested party cannot frame fresh issues. Since the 1st Respondent is a person directly affected, Order 53 permits his participation, and the ex parte applicant was given 14 days to amend the Notice of Motion accordingly.
Whether grounds 4, 5 and 6 constitute true preliminary objections
They do not; they require in-depth factual analysis touching the final determination of the suit
Applying the Mukisa Biscuit test, the court held that objections requiring ascertainment of facts or an in-depth analysis going to the merits of the impugned appeal-to-the-Minister proceedings cannot properly be raised as preliminary objections; those grounds were therefore dismissed.
Legal principles established
#- Judicial review proceedings can be brought against any person who acts in the position of an administrator as defined under the Fair Administrative Action Act
- A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts must be ascertained
- Persons directly affected by judicial review proceedings may participate as interested parties under Order 53 rules 2 and 4
Court orders
#- 1.The name of the 1st Respondent Augustus Ndili Nzunguli be and is hereby struck out as a respondent in this suit.
- 2.All other grounds in the preliminary objection dated 14th April 2023 are hereby dismissed.
- 3.The ex parte applicant is at liberty to amend the Notice of Motion dated 14th April 2023 within fourteen (14) days from today by striking out the name of Augustus Ndili Nzunguli as the 1st respondent and adding him as an interested party.
- 4.There will be no orders for costs.
- Jurisdiction invoked
- Judicial review jurisdiction under Article 47 of the Constitution and the Fair Administrative Action Act; Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Nzunguli & 5 others; Nguni (Exparte) (Judicial Review E001 of 2023) [2024] KEELC 4161 (KLR)", Case Analysis (2024). Judicial Review E012 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4161/eng@2024-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.