Brek v Principal Kadhi – Malindi & 2 others (Civil Appeal E051 of 2022) [2026] KECA 55 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that you cannot use judicial review to overturn a judge's decision—you must appeal, even when the lower court got the law wrong.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether it was appropriate for the appellant to challenge the ruling of 5th May 2021 delivered by the Senior Principal Kadhi through a judicial review process, or whether an appeal was the proper remedy
Key legal issues
#Whether judicial review was the appropriate remedy against the Kadhi's Court ruling excluding Malindi Plot No. 3659 from the deceased's estate
It was not. Judicial review interrogates the decision-making process, not the merits, and a party aggrieved by a judicial pronouncement must follow the appellate procedure. The Kadhi acted ultra vires by reopening an issue settled by the High Court, but the remedy was an appeal.
The Court found the Kadhi erred in entertaining a matter already settled twice by the High Court, breaching stare decisis. However, the dispute was private-law in nature and the Kadhi's decision was judicial, not administrative. Judicial review is exceptional, concerned with process not merits, and cannot substitute the reviewing court's view for that of the decision-maker. An appeal, not certiorari, was the proper channel to test the correctness of the decision.
Whether the Senior Principal Kadhi's ruling of 5th May 2021 violated the doctrine of stare decisis
Yes. The Kadhi improperly pronounced himself on an issue already settled by the High Court on two occasions and was bound by those decisions.
The High Court had, through Korir, J. and Njoki Mwangi, J., determined that Kwa Chocha Villa formed part of the deceased's estate and directed distribution in accordance with Islamic Law. The Kadhi's only task was to follow those directions. His attempt to correct a perceived wrong through additional proceedings exceeded his jurisdiction and made his decision amenable to challenge.
Legal principles established
#- A subordinate court is bound by the decision of a superior court; it cannot reopen or sit on appeal over an issue already settled by the High Court, per the doctrine of stare decisis.
- A judicial decision, being private-law and judicial rather than administrative in nature, must be challenged by way of appeal, not judicial review; a wrong decision made within the law is seldom ultra vires so as to attract prerogative writs.
- On a second appeal, the Court of Appeal confines itself to matters of law only.
Court orders
#- 1.The appeal is dismissed
- 2.The Ruling of Githinji, J. dated and delivered on 26th October 2022 is upheld
- 3.Each party shall bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Malindi Judicial Review Misc. Application No. 007 of 2021
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal on matters of law only)
Relief refused
#Setting aside of the ruling in Malindi Judicial Review Misc. Application No. 007 of 2021 delivered on 26th October 2022
The appeal was unmeritorious; judicial review was not the proper avenue to test the correctness of a judicial decision
Costs of the appeal and of the Judicial Review application awarded to the appellant
The Court ordered each party to bear their own costs
Costs
Each party shall bear their own costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the foregoing reasons, we find this appeal unmeritorious and the same is hereby dismissed. We accordingly uphold the Ruling of the learned Judge (Githinji, J.) dated and delivered on 26th October 2022. Each party shall bear their own costs of the appeal.
The fact is that it was bound by the decision of the High Court, which is superior to it. This is the essence and letter and spirit of the principle of stare decisis.
a Judicial Review application is not the proper avenue that a party should undertake to test the correctness or wrongfulness of a judicial decision.
the dispute between the parties was primarily under the realm of private and not public law. The decision of the Hon. Kadhi was judicial in nature, and not one made in the process of an administrative function.
As at that point, any further litigation as to the entitlement to Malindi Parcel No. 3659 could not be relitigated before any court of subordinate jurisdiction to the High Court. Any further grievance fell for determination by this Court in an appeal.
Issues in the judgment
#The judgment inconsistently dates the ruling of Korir, J., at one point referring to a decision of 15th April 2019 and elsewhere to a ruling dated 19th April 2019 delivered on 25th May 2019.
The grounds of appeal misstate the parcel number as 'Plot Number 3696' whereas the rest of the judgment refers to Malindi Plot/Parcel No. 3659.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Brek v Principal Kadhi – Malindi & 2 others (Civil Appeal E051 of 2022) [2026] KECA 55 (KLR)", Case Analysis (2026). Second Appeal against Malindi Judicial Review Misc. Application No. 007 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/55/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.