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ELCPartially AllowedJudicial Review No E006 of 2023· [2025] KEELC 3639 (KLR)

Njagi v Muchiri & another (Judicial Review E006 of 2023) [2025] KEELC 3639 (KLR)

Environment and Land Court
8 May 2025
JMJ. M. Mutungi
2,987 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land committee's decision was quashed because it excluded the affected party from site visits and gave him no chance to question witnesses.

What this practically means

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Executive summary

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The Ex-parte Applicant sought an order of certiorari quashing the proceedings of 27th September 2023 and the verdict of the Dispute Resolution Committee of the Department of Lands, Physical Planning and Urban Development dated 4th October 2023 concerning Plot No. 182B/B182 Wang'uru and Plot No. B302 Wanguru. The Applicant purchased Plot B182, took possession and developed it, but the 1st Respondent complained that the Applicant had encroached on his Plot B302. The Dispute Resolution Committee, after two site visits at which unnamed witnesses indicated that all plots in the area measured 50ft by 100ft, found that the Applicant had encroached on Plot B302. The Applicant contended the process was procedurally unfair: he was not informed of the witnesses, could not cross-examine them, the original owner was not heard, and the County Surveyor did not participate. The 1st Respondent argued that judicial review concerns process, not merits, and that the Applicant was represented and heard. The court framed a single issue: whether there was procedural impropriety warranting certiorari. Applying Article 47 of the Constitution, the Fair Administrative Action Act, 2015, and principles from Municipal Council of Mombasa, Winrose Gathigia, De Souza and Board of Education v Rice, the court held that since the site visits decisively influenced the resolution, the affected parties should have been notified, included and allowed to interrogate the witnesses; the minutes did not verify this. The process was flawed and the decision could not stand. Certiorari was issued in terms of prayer 1, with each party bearing their own costs.

Key legal issues

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01

Whether the Dispute Resolution Committee's process was procedurally unfair so as to warrant certiorari

Holding

Yes. The Committee relied heavily on site visits and evidence from unnamed witnesses without involving the Applicant or affording him an opportunity to cross-examine or controvert that evidence, breaching natural justice, Article 47 and the Fair Administrative Action Act.

Reasoning

The minutes did not verify whether affected parties were present during the site visits, which significantly influenced the resolution on plot measurements. The Applicant's assertion that he was not informed of the witnesses or given a chance to cross-examine them was uncontested. A quasi-judicial body must allow parties to correct or contradict prejudicial statements; the process was flawed and the decision could not stand.

p. 6
02

Scope of judicial review - process versus merits

Holding

Judicial review examines the decision-making process, not the merits, but courts must guard against misuse of power by public authorities.

Reasoning

Relying on Municipal Council of Mombasa, the court noted it should not act as a court of appeal over the decision-maker. However, following Fordham's Judicial Review Handbook, judicial review is a crucial safeguard for the rule of law against misuse of power by public authorities, which permitted scrutiny of the procedural fairness of the Committee's process.

p. 4

Legal principles established

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  • Where a decision-making body relies on information gathered from third parties or site visits, the affected parties must be notified, included and given an opportunity to comment on or contradict that material; failure to do so renders the process procedurally improper.

Court orders

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  1. 1.An Order of certiorari quashing the proceedings of 27th September 2023 and the verdict of the Dispute Resolution Committee of Lands, Physical Planning and Urban Development dated 4th October 2023 in respect of Plot No. 182B Wang'uru and Plot No. B302 Wanguru
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47(1) and (2)
  • Fair Administrative Action ActSections 4(1), (2) and (3)

Cases cited (8)

  • Republic v County Government of Nairobi, Kilimani Project Foundation & 21 Others [Interested Parties] Ex parte Cytonn Investment Partners Sixteen Lip
    [2020] eKLR
  • Republic v Kenya Revenue Authority Ex parte Yaya Towers Limited
    [2008] eKLR
  • Pastoli v Kabale District Local Government Council & Others
    [2008] 2 EA 300
  • Kenya National Examination Council v Republic Ex-parte Geofirey Gathenji Njoroge & 9 Others
    [1997] eKLR
  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Winrose Gathigia v Kenyatta University
    [2008] KEHC 3907 [KLR]
  • Hypolito Cassiani De Souza v Chairman Members of Tanga Town Council
    1961 EA 77
  • Board of Education v Rice
    [1911] AC 179
Jurisdiction invoked
Judicial review jurisdiction under Article 47 of the Constitution and the Fair Administrative Action Act, 2015 (order of certiorari)

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, "Njagi v Muchiri & another (Judicial Review E006 of 2023) [2025] KEELC 3639 (KLR)", Case Analysis (2025). Judicial Review No E006 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3639/eng@2025-05-08

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