KIvivya (Suing as the legal representative of the Estate of Cyril Kimet Mwevya - Deceased) v Deputy County Commissioner, KilunguSub-County (As a delegate of the Cabinet Secretary for Lands and Physical Planning) & 2 others; Kituma & another (Interested Parties) (Environment and Land Judicial Review Case 4 of 2024) [2026] KEELC 555 (KLR)
The bottom line
#The High Court dismissed a landowner's bid to overturn a land adjudication appeal decision, confirming that judicial review challenges process, not the merits of a decision.
What this practically means
#Executive summary
#Key legal issues
#Whether the Ex-parte Applicant was accorded a fair hearing before the 1st Respondent
Yes – he was present, called a witness, cross-examined, and his evidence including the earlier civil case was considered
The record showed the Applicant attended the hearing, called one witness, and both parties cross-examined witnesses. The 1st Respondent's decision cited Civil Case No. L 113 of 1979, evidence introduced by the Applicant himself. The claim that his evidence was ignored was therefore unfounded and due process was achieved.
Whether the absence of a site visit (locus in quo) rendered the decision premature or unfair
No – there is no legal requirement that the Minister/Delegate conduct a site visit, and no authority was presented for that contention
The court found no provision in the Land Adjudication Act compelling a site visit and no authority supporting the contention. Citing Arlidge, Selvarajan and R v Immigration Appeal Tribunal ex-parte Jones, the court held administrative bodies are masters of their own procedure provided fairness is achieved.
Whether the 1st Respondent acted ultra vires or without jurisdiction
No – the 1st Respondent had jurisdiction under Section 29 of the Land Adjudication Act and followed due process
The court adopted the Pastoli test for ultra vires/illegality and found the decision-maker had jurisdiction under Section 29 of the Land Adjudication Act. The Applicant was given the opportunity to prove his case with witnesses and documentary evidence, so the Respondents acted lawfully.
Whether the application was a proper vehicle to challenge the decision
No – it amounted to an appeal on the merits, which is impermissible in judicial review
Applying Municipal Council of Mombasa v Republic, the court held judicial review examines only the process, not sufficiency of evidence or the merits. Scrutiny of the decision disclosed no procedural impropriety or failure to consider material considerations; the challenge was really an appeal on the merits.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision; the reviewing court cannot sit as an appeal court over the decision-maker
- An applicant for judicial review must show illegality, irrationality or procedural impropriety
- A fair hearing does not require a site visit or a full adversarial hearing; quasi-judicial bodies are masters of their own procedure provided they achieve the appropriate degree of fairness
Court orders
#- 1.The Notice of Motion dated 27th February, 2024 is dismissed with costs
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act and Order 53 Rules 1 and 2 of the Civil Procedure Rules, 2010 (judicial review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KIvivya (Suing as the legal representative of the Estate of Cyril Kimet Mwevya - Deceased) v Deputy County Commissioner, KilunguSub-County (As a delegate of the Cabinet Secretary for Lands and Physical Planning) & 2 others; Kituma & another (Interested Parties) (Environment and Land Judicial Review Case 4 of 2024) [2026] KEELC 555 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/555/eng@2026-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.