Republic v County Government of Nairobi; Oduor & 2 others (Exparte) (Environment and Land Case Judicial Review Application E004 of 2023) [2024] KEELC 4205 (KLR)
The bottom line
#The High Court dismissed tenants' attempt to use judicial review to save their Nairobi market tenancy, ruling tenancy termination is a private contract matter, not an administrative decision.
What this practically means
#Executive summary
#Key legal issues
#Scope of judicial review
Judicial review is supervisory only, confined to the decision-making process, not the merits
The court relied on Municipal Council of Mombasa v Republic & Umoja Consultants, Pastoli v Kabale District Local Government Council and Republic v Tanaathi Water Services Board to hold that the court cannot sit as an appellate court over the decision-maker or re-hear the dispute. The Applicants were concerned with the economic effect of the termination, not the process, and failed to show illegality, irrationality or procedural impropriety.
Whether termination of a tenancy constitutes administrative action amenable to judicial review
No - it is a private law matter outside Article 47 and the Fair Administrative Action Act
The court found the parties entered a tenancy relationship under the Local Government Act (repealed), with the tenancy card as the operative agreement. Terminating a tenancy is not exercising administrative authority; the proper remedy lies in private law. The tenancy card permitted termination by one month's written notice, which was duly given and not denied.
Whether the allotment letter conferred proprietary interest in the suit premises
It did not; it was an offer inviting the Applicants into a tenancy relationship
The court held that a letter of allotment per se is an invitation to treat conferring no interest in land. Here the allotment letter was used to create a tenancy agreement, evidenced by Tenancy Card No. 250, making the Applicants mere tenants. The Respondent had authority under sections 143(1) and 144(5) of the Local Government Act to let the land.
Whether the decision of the Intergovernmental Relationship Steering Committee could be impugned in these proceedings
No - the Committee is not a party and its decision has not been challenged or vacated
The letter of 14/02/2023 implemented a decision of the Intergovernmental Relationship Steering Committee ratified by the County Secretary, which remains valid and unchallenged. The court found the Applicants never sought to challenge that underlying decision, and the Applicants did not deny receiving the lawful one-month termination notice.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision; the court should not act as a court of appeal over the decision-maker
- An applicant for judicial review must show the impugned decision is tainted with illegality, irrationality or procedural impropriety
- Termination of a tenancy agreement is not an exercise of administrative authority and does not fall within Article 47 of the Constitution or the Fair Administrative Action Act; it is a matter of private law
- A letter of allotment is merely an invitation to treat and does not confer a proprietary interest in land
Court orders
#- 1.The Ex parte Applicants' Notice of Motion dated 9/10/2023 is dismissed
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Section 8 of the Law Reform Act; Order 53 of the Civil Procedure Rules; Articles 10, 35, 47 and 174(f) of the Constitution invoked; Sections 7(2)(b)(c)&(j) of the Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Government of Nairobi; Oduor & 2 others (Exparte) (Environment and Land Case Judicial Review Application E004 of 2023) [2024] KEELC 4205 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 9/10/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4205/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.