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ELCDismissedNotice of Motion dated 28th July 2022· [2025] KEELC 851 (KLR)

Republic v Attorney General & 2 others; Musesi (Interested Party); Ngii (Exparte Applicant) (Judicial Review E007 of 2022) [2025] KEELC 851 (KLR)

Environment and Land Court
27 February 2025
LKL. G. Kimani
3,869 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's bid to overturn a Minister's land adjudication appeal decision, confirming judicial review cannot re-decide land disputes.

What this practically means

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Executive summary

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The ex parte applicant sought an order of certiorari to quash the decision of the 2nd Respondent, the Deputy County Commissioner and Land Registrar, in Minister's Appeal No. 322 of 2019, which awarded land parcel 345 Thitha Adjudication Section to the interested party, Peter Musyoka Musesi. He also sought mandamus compelling registration of the parcel in his name, prohibition against implementation of the decision, and a stay. He alleged bias, violation of natural justice and the Fair Administrative Actions Act, failure to supply the decision promptly, denial of the right to call witnesses, and reliance on a sale agreement that was never produced in evidence. The respondents and the interested party opposed, contending the applicant was challenging the merits of the decision, which is impermissible in judicial review. The court framed two issues: whether the impugned proceedings and decision were tainted by bias, illegality or procedural impropriety, and whether the applicant was entitled to the orders sought. The court found no bias, noting the hearing notice allowed witnesses, that Regulation 4 requires leave before calling witnesses, and that the applicant made contradictory claims about the site visit. The delay in supplying the proceedings was not inordinate and caused no prejudice. The finding that the applicant sold the land was supported by the adjudication record. Certiorari therefore could not issue; mandamus would amount to the court deciding the dispute itself, beyond the supervisory scope of judicial review; and prohibition could not issue without certiorari. The Notice of Motion dated 28th July 2022 was dismissed with costs to the respondents and the interested party.

Key legal issues

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01

Whether the 2nd Respondent was biased and violated natural justice

Holding

No bias or breach of natural justice was established; the hearing notice allowed parties to bring witnesses and nothing showed the applicant sought leave to call witnesses or was denied the chance

Reasoning

The applicant claimed he was denied the opportunity to call witnesses and that the site visit was conducted without notice. The court examined the proceedings in Minister's Appeal No. 322 of 2019 and found no request to call witnesses or denial of such. The hearing notice of 2nd February 2021 invited parties to produce witnesses. Regulation 4 of the Land Adjudication Regulations, 1970 requires leave of the Minister before calling witnesses. Contradictory claims about the site visit also undermined the bias claim.

p. 5
02

Whether the delay in supplying the decision and proceedings breached fair administrative action

Holding

The period from 9th November 2021 to 26th January 2022 was not inordinate and the applicant suffered no prejudice since he filed the judicial review proceedings in time

Reasoning

The applicant complained the decision was read on 9th November 2021 but proceedings and decision were only supplied on 26th January 2022. The court noted he was informed of the ruling date by letter dated 1st November 2021, requested the documents on 15th November 2021, and was able to obtain leave on 12th April 2022 within time. No prejudice was demonstrated.

p. 7
03

Whether the 2nd Respondent considered extraneous matters, including an unproduced sale agreement

Holding

The 2nd Respondent's finding that a sale took place and the price was paid was supported by evidence from the adjudication proceedings and was neither illegal nor unreasonable

Reasoning

The applicant admitted selling the land but claimed the purchase price was not fully paid, and faulted the 2nd Respondent for relying on a sale agreement not produced in evidence. The 2nd Respondent had studied the tribunal proceedings and found the sale proven through witness testimony. The court agreed, noting the applicant would have produced his own copy of the agreement if he relied on its terms. Judicial review does not reopen the merits.

p. 7
04

Whether the applicant was entitled to the prerogative orders sought

Holding

Having failed to establish illegality or procedural impropriety, certiorari could not issue, and mandamus and prohibition could not issue without certiorari; the mandamus prayer also sought relief outside the supervisory scope of judicial review

Reasoning

Certiorari quashes only decisions tainted by illegality, irrationality or procedural impropriety. The mandamus prayer sought to compel registration of the land to the applicant, effectively requiring the court to decide the dispute itself, contrary to the principles in the Kenya National Examinations Council case. Prohibition was contingent on certiorari issuing.

p. 8

Legal principles established

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  • The Minister or Deputy County Commissioner acting under section 29 of the Land Adjudication Act need not take fresh evidence or conduct site visits when hearing an appeal; it suffices to consider the grounds of appeal and the record below
  • Judicial review is supervisory only; the court cannot, through mandamus, substitute its own decision for that of the administrative body
  • Allegations of corruption must be proven by evidence under section 107(1) of the Evidence Act

Court orders

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  1. 1.The Notice of Motion dated 28th July 2022 is dismissed
  2. 2.Costs of the application awarded to the Respondents and the Interested Party

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Fair Administrative Actions Act, No. 4 of 2015Section 4(1)
  • Fair Administrative Actions Act, No. 4 of 2015Section 12
  • Land Adjudication ActSection 29(1)
  • Land Adjudication ActSection 26
  • Land Adjudication Regulations, 1970Regulation 4; Rules 11(3) and (4)
  • Evidence Act, Cap 80 Laws of KenyaSection 107(1)

Cases cited (4)

  • Matwanga Kilonzo v District Commissioner, Kitui & another
    [2021] eKLR
  • Suchan Investment vs. The Ministry of National Heritage and Culture
    (2016) eKLR
  • Kenya National Examination Council v Republic Ex Parte Geofirey Gathenji Njoroge & 9 others
    [1997] eKLR
  • In the Matter of John Mbiri Njagi
    Chuka JR Misc EOO4 of 2021
Jurisdiction invoked
Judicial review jurisdiction of the High Court under Articles 47 and 23 of the Constitution and the Fair Administrative Actions Act, No. 4 of 2015 (order of certiorari, mandamus and prohibition)

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 Attorney General & 2 others; Musesi (Interested Party); Ngii (Exparte Applicant) (Judicial Review E007 of 2022) [2025] KEELC 851 (KLR)", Case Analysis (2025). Notice of Motion dated 28th July 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/851/eng@2025-02-27

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