Mulwa & another v Deputy County Commissioner Kilungu & 2 others; Mbwiki & another (Interested Parties) (Environment and Land Judicial Review Case E002 of 2023) [2025] KEELC 3968 (KLR)
The bottom line
#The High Court dismissed a land dispute judicial review because the applicants attacked the decision's merits instead of proving the process was unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Ex-parte Applicants were denied a fair hearing
No - the Applicants were invited, gave evidence, witnesses were cross-examined and a decision delivered, satisfying due process
The court found on the documentary evidence (Exhibit GNM2) that the Applicants were invited to the hearing, the 1st Applicant testified, all parties were heard and their witnesses cross-examined before the decision was delivered. Relying on authority that audi alteram partem does not demand a full adversarial hearing, the court held fairness depends on context and due process was followed.
Whether the 1st Respondent acted ultra vires
No - the 1st Respondent had jurisdiction under Section 29 of the Land Adjudication Act and no illegality or reliance on irrelevant considerations was proved
The court accepted the 1st Respondent's power under Section 29 of the Land Adjudication Act to hear the appeal. Applying the test that an act is ultra vires where the decision-maker errs in law, acts without jurisdiction, or breaches a statutory provision, the court found no proof of illegality, irrelevant considerations or procedural impropriety in the impugned decision.
Whether the application was a proper judicial review challenge
No - it was an impermissible appeal on the merits dressed as judicial review
Applying Municipal Council of Mombasa v Republic, the court reiterated that judicial review examines process, not merits. The Applicants were in truth contesting the sufficiency of the evidence and the correctness of the decision, which is the province of an appeal, not judicial review.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision itself
- An applicant for judicial review must show illegality, irrationality or procedural impropriety
- Natural justice does not require a full adversarial oral hearing; fairness is contextual
Court orders
#- 1.The Notice of Motion dated 26th October, 2023 is dismissed with costs
- Jurisdiction invoked
- Article 23(3)(f) of the Constitution and Order 53 Rule 3(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulwa & another v Deputy County Commissioner Kilungu & 2 others; Mbwiki & another (Interested Parties) (Environment and Land Judicial Review Case E002 of 2023) [2025] KEELC 3968 (KLR)", Case Analysis (2025). Judicial Review application, Motion dated 26th October, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3968/eng@2025-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.