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ELCPartially AllowedJudicial Review E012 of 2023· [2024] KEELC 4161 (KLR)

Republic v Nzunguli & 5 others; Nguni (Exparte) (Judicial Review E001 of 2023) [2024] KEELC 4161 (KLR)

Environment and Land Court
7 May 2024
2,664 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kitui (L. G. Kimani J, 7 May 2024) determines a preliminary objection by the 1st Respondent, Augustus Ndili Nzunguli, in judicial review proceedings in which the ex parte applicant, Patrick Munyoki Nguni, sought certiorari to quash decisions of the 2nd Respondent in Nzawa Adjudication Section appeal cases Nos. 102/1999, 28/2020 and 35/2000, and prohibition against the 2nd, 3rd and 4th Respondents. The dispute arose from land adjudication over parcels 1677, 578 and 1575 between the parties' late fathers. The 1st Respondent objected that he was not a public officer or body amenable to judicial review, having been merely a party to the appeal to the Minister decided by the Deputy County Commissioner in September 2022. Applying Article 47 of the Constitution and the Fair Administrative Action Act, the court held that judicial review lies only against persons acting as administrators; the 1st Respondent made no findings or decisions and was therefore improperly joined as a respondent. However, being a person directly affected under Order 53 rules 2 and 4, he may participate as an interested party. The court struck out his name as respondent, dismissed the remaining grounds of the objection for failing the Mukisa Biscuit test of a true preliminary objection, allowed the ex parte applicant fourteen days to amend the Notice of Motion to add him as an interested party, and made no orders as to costs.

Key legal issues

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01

Whether the 1st Respondent is amenable to judicial review as an administrator

Holding

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

Reasoning

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.

p. 4
02

Whether the 1st Respondent may be joined as an interested party

Holding

Yes; the court directed the ex parte applicant to amend to join him as an interested party under Order 53 rules 2 and 4

Reasoning

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.

p. 5
03

Whether grounds 4, 5 and 6 constitute true preliminary objections

Holding

They do not; they require in-depth factual analysis touching the final determination of the suit

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The name of the 1st Respondent Augustus Ndili Nzunguli be and is hereby struck out as a respondent in this suit.
  2. 2.All other grounds in the preliminary objection dated 14th April 2023 are hereby dismissed.
  3. 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. 4.There will be no orders for costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Fair Administrative Action ActSection 2; Section 9
  • Land Adjudication ActSection 29
  • Civil Procedure RulesOrder 1 Rule 10(2); Order 10 Rule 2; Order 53 rules 2 and 4

Cases cited (9)

  • Kadamas & Another vs Municipality of Kisumu
    (1985) eKLR
  • Republic vs Kenya Cricket Association & 2 others, ex parte Maurice Omondi Odumbe
    (2006) eKLR
  • Suchan Investment Limited vs Ministry of National Heritage & Culture & 3 others
    (2016) eKLR
  • Municipal Council of Mombasa vs Republic & Another
    (2002) eKLR
  • John Harun Mwau vs Simon Hayson & 2 others; Attorney General (Interested Parties)
    (2021) eKLR
  • Habiba vs Ramadhan & 7 others v Mary Njeri Gitibu
    (2017) eKLR
  • Communications Commission of Kenya & 4 others v. Royal Media Services Limited & 7 others
    (2014) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd –VS- West End Distributors Ltd.
    [1969] E.A. 696
  • Methodist Church in Kenya v Mohamed Fugicha & 3 Others
    (2019) eKLR
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

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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 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.