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ELCDismissedJudicial Review (Notice of Motion dated 19th April 2023), re Appeal to the Minister Case No. 132 of 2019· [2024] KEELC 6331 (KLR)

Kaura v District Land Adjudication and Settlement Officer Igamba Ng’ombe Sub-County & 2 others; Marua (Interested Party) (Environment and Land Judicial Review Case E003 of 2023) [2024] KEELC 6331 (KLR)

High Court of Kenya
25 September 2024
5,490 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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The High Court in Chuka dismissed a landowner's bid to overturn a Minister's land appeal decision, confirming Kenyan judicial review challenges process only, not whether a decision was right.

What this practically means

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Executive summary

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The ex-parte applicant, Edith Kaura, sought judicial review orders of certiorari and prohibition to quash and restrain implementation of the decision in Appeal to the Minister Case No. 132 of 2019, delivered on 19th December 2022 and certified on 31st January 2023, concerning Kamwimbi 'A' Adjudication Section parcel No. 2082 hived off from parcel No. 778. She alleged gross irregularities before the appeal panel: that the interested party was absent at the committee stage, that she was not allowed to testify, and that the decision-maker made findings of a relationship between the parties unsupported by evidence and failed to make clear site-visit findings. The respondents argued the application attacked the merits, not the process, and that the Deputy County Commissioner acted under delegated statutory powers under Section 29 of the Land Adjudication Act Cap 284. The interested party maintained he received a fair hearing and holds ancestral rights to the land. Yano J framed two issues: whether the respondents exercised their statutory duties as envisaged by law, and whether judicial review orders were available. The court held that judicial review is confined to the decision-making process, not the merits, its role being supervisory rather than appellate. On the record, all parties, including the applicant, were afforded an opportunity to present their cases and she participated in the proceedings. Her complaints were found to go to the merits, and no illegality, irrationality or procedural impropriety was demonstrated. The Notice of Motion dated 19th April 2023 was dismissed with costs to the respondents and the interested party.

Key legal issues

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01

Whether the decision-making process before the 2nd respondent was lawful and fair

Holding

The process was fair, objective and procedural; all parties were afforded an opportunity to present their cases and the applicant participated in the appeal proceedings.

Reasoning

The court examined the record of the appeal proceedings and found the applicant participated as plaintiff, including cross-examining the interested party. Allegations that the minister failed to recognize inconsistencies or wrongly found a relationship went to the merits. There was no evidence of bias, denial of hearing, or non-observance of natural justice.

p. 7
02

Whether the orders of certiorari and prohibition are available

Holding

They are unavailable because no illegality, irrationality or procedural impropriety was demonstrated; the application was a disguised challenge to the merits.

Reasoning

Judicial review orders are discretionary and premised on illegality, irrationality or procedural impropriety. The applicant's complaints - the finding of kinship, the weight of evidence and site-visit findings - were merits-based. The court's supervisory role does not permit it to re-evaluate evidence.

p. 10

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision; the court's role is supervisory, not appellate.
  • Certiorari will only issue where a decision is made without jurisdiction, in excess of jurisdiction, or in breach of the rules of natural justice.
  • 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 Application dated April 19, 2023 is dismissed
  2. 2.Costs awarded to the respondents and the Interested Party

Authorities

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Legislation

  • Constitution of Kenya 2010Article 23(3)(f); Article 47
  • Law Reform Act Cap 26Sections 8 and 9
  • Civil Procedure Rules 2010Order 53 Rule 1(1), (2) and (3)
  • Land Adjudication Act Cap 284Sections 26, 29, 29(4)
  • Evidence ActSections 107, 108

Cases cited (16)

  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    [2002] eKLR
  • Pastoli v Kabale District Local Government Council & Others
    [2008] 2 EA 300
  • Keroche Industries Limited v Kenya Revenue Authority & 5 Others
    Nairobi HCMA No. 743 of 2006 [2007] KLR 240
  • Reg v Secretary of State for the Environment Ex-parte NottinghamShire County Council
    (1986) AC
  • Kenya National Examination Council v Republic Ex-parte Geoffrey Gathenji & 9 Others
    Nairobi Civil Appeal No. 266 of 1996 [1997] eKLR
  • Republic v Cabinet Secretary, Ministry of Lands and Settlement & 2 Others Ex-Parte Gerald Mbuuri Kabugu
    [2018] eKLR
  • Republic v County Director of Education, Nairobi & 4 Others Ex-Parte Abdukadir Elmi Robleh
    [2018] eKLR
  • Msagha v Chief Justice & 7 Others
    Nairobi HCMCA No. 1062 of 2004 (HCK) [2006] 2 KLR 553
  • Republic v Director of Immigration Services & 2 Others Ex-parte Olamilekan Gbenga Fasuyi & 2 Others
    [2018] eKLR
  • Republic v Kenya Power & Lighting Company Limited & Another
    [2013] eKLR
  • East African Community v Railways African Union (Kenya) and Others (No.2)
    Civil Appeal No. 41 of 1974 [1974] EA 425
  • Republic v Public Procurement Administrative Review Board & 2 Others Ex-parte Rongo University
    [2018] eKLR
  • Justus Mathumbi & 9 Others v Cabinet Secretary Ministry of Land, Housing and Urban Development & 4 Others
    [2018] eKLR
  • M'Bita Ntiro v Mbae Mwirichia & Another
    [2018] eKLR
  • Zachariah Wagunza & Another v Office of the Registrar, Academic Kenyatta University & 2 Others
    [2013] eKLR
  • Commissioner of Lands vs Kunste Hotel Limited
    (1997) eKLR
Jurisdiction invoked
Article 23(3)(f) and Article 47 of the Constitution of Kenya 2010; Sections 8 and 9 of the Law Reform Act Cap 26; Order 53 Rules 1(1), (2) and (3) of the Civil Procedure Rules 2010

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, "Kaura v District Land Adjudication and Settlement Officer Igamba Ng’ombe Sub-County & 2 others; Marua (Interested Party) (Environment and Land Judicial Review Case E003 of 2023) [2024] KEELC 6331 (KLR)", Case Analysis (2024). Judicial Review (Notice of Motion dated 19th April 2023), re Appeal to the Minister Case No. 132 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6331/eng@2024-09-25

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