James Kariko Bacha & 2 others v Land Disputes Tribunal Kiambu West & another [2019] KECA 174 (KLR)
The bottom line
#The Court of Appeal confirmed that Kenyans must finish the appeal routes a statute provides before running to the High Court for judicial review.
What this practically means
#Executive summary
#Key legal issues
#Exhaustion of statutory remedies before invoking judicial review
The appellants abandoned the appellate process under the Land Disputes Tribunal Act (appeal to the Provincial Appeals Committee and further appeal to the High Court on points of law) and could not bypass it through judicial review; the statutory appellate process was best suited to determine the dispute, including the jurisdictional question as a point of law.
The Court held that although an alternative forum does not bar judicial review, the statutory appeal route under the Land Disputes Tribunal Act was suited to determine the dispute conclusively. The jurisdictional objection could have been raised as a pure point of law in the High Court at the tail end of that appellate process. Having failed to invoke it, the appellants could not succeed at the leave stage.
Purpose and threshold of leave for judicial review
Leave is a filtering mechanism; the applicant must show a prima facie or arguable case, and the learned Judge was entitled to find the appellants had not.
The Court reiterated that leave is meant to scrutinise and sieve claims so that only serious, non-frivolous matters proceed to substantive hearing. The appellants had not exhausted the remedies under the Act before moving the High Court, so the material before the Judge did not warrant the exercise of discretion in their favour.
Interference with judicial discretion on appeal
No misdirection was discerned in the Judge's exercise of discretion, so the Court of Appeal declined to interfere.
Applying the principles in Kenya Revenue Authority v Darasa Investments Limited and Coffee Board of Kenya v Thika Coffee Mills, the Court found the Judge had not misdirected himself, nor was he clearly wrong in a manner occasioning injustice. The appeal therefore failed on this ground as well.
Legal principles established
#- Leave to apply for judicial review is not granted as a matter of course; the applicant must demonstrate a prima facie or arguable case
- Where the Constitution or a statute provides a remedy and confers jurisdiction, that jurisdiction must be invoked and exhausted before resorting to judicial review
- An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself or was clearly wrong and injustice was occasioned
- The existence of an alternative forum does not bar judicial review, but exemption from the exhaustion requirement is granted only in exceptional circumstances in the interest of justice under section 9(4) of the Fair Administrative Action Act
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- Misc. JR ELC No. 88 of 2008
- Jurisdiction invoked
- First appeal to the Court of Appeal against the High Court's ruling in a judicial review leave application (sections 8 and 9 of the Law Reform Act and Order LIII Rules 1 & 2 of the Civil Procedure Rules were the provisions invoked below)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kariko Bacha & 2 others v Land Disputes Tribunal Kiambu West & another [2019] KECA 174 (KLR)", Case Analysis (2019). Civil Appeal No 71 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/174/eng@2019-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.