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ELCDismissedJudicial Review Application dated 12th October 2018

Paul Mwicigi Mbugua & another v Attorney General & 7 others [2020] KEELC 3817 (KLR)

Environment and Land Court
4 February 2020
MOM.C. Oundo
2,897 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Nyahururu court dismissed a family's attempt to use judicial review to resolve a land ownership dispute, ruling such fights belong in a normal lawsuit.

What this practically means

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Executive summary

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The Applicants, administrators of the estate of Peter Mbugua Mwicigi, moved the court by a substantive motion dated 12th October 2018 seeking orders of certiorari and prohibition against two notices issued by the Ministry of Lands and Physical Planning dated 8th May 2018 and 7th June 2018, which authorised preparation of mutation forms for surveying and subdividing Plot No. 564 Kirima Settlement Scheme between the Applicants and the 7th Respondent, Nduati Njoroge. The Applicants contended that the notices were products of fraud, collusion, abuse of office and unfairness aimed at disinheriting them of land their late father had purchased. The 1st-6th Respondents, through the Attorney General, opposed, submitting that the application raised merits issues of ownership and sale not triable in judicial review, and that prayers must be specifically pleaded. The 7th Respondent raised objections on service, want of locus standi, non-joinder of the Settlement Fund Trustees, delay, and failure to exhaust statutory remedies under the Environment and Land Court Act. The court applied the settled principle that judicial review concerns the decision-making process, not the merits or private rights. It found that the real dispute was sale and ownership of land requiring viva voce evidence in a normal suit before the Environment and Land Court, and that certiorari and prohibition were inappropriate remedies. The application dated 12th October 2018 was dismissed with costs to the Respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether prayer No. (b) of the Application could be issued
  2. 2.Whether the Application raised any triable issues within the purview of Judicial Review

Key legal issues

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01

Whether certiorari and prohibition could issue in respect of the impugned notices

Holding

The remedies were refused because the dispute raised merits issues of sale and ownership of land, which are for a trial court in normal proceedings

Reasoning

The court reasoned that the applicants' real grievance was ownership of Plot No. 564 Kirima Settlement Scheme following a sale, a dispute requiring evaluation of evidence such as the sale agreement and transfers. Judicial review examines only the decision-making process, and a judicial review court should not usurp the functions of a trial court except in the clearest of cases, which this was not.

p. 4

Legal principles established

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  • Judicial review is concerned only with the decision-making process, not the merits or private rights
  • Land ownership disputes requiring viva voce evidence belong in a normal suit, not judicial review

Court orders

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  1. 1.The Application dated the 12th October 2018 is dismissed with costs to the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MO
majority

Wrote the judgment

Jurisdiction invoked
Article 157(1) and (7) of the Constitution invoked by Applicants; Fair Administrative Action Act (Sections 7(2), 9(2), 11(1))

Relief refused

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Orders of Certiorari quashing the notices dated 8th May 2018 and 7th June 2018

The dispute concerns sale and ownership of land, requiring viva voce evidence in normal proceedings, not judicial review

p. 4

Order of Prohibition against the impugned notices

Not appropriate in judicial review where the issues raised are merits-based issues of ownership

p. 4

Costs

Application dismissed with costs to the Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find that this matter can only be finally adjudicated before the Environment and Land Court in the normal proceedings and therefore the remedies of Prohibition and Certiorari are not the appropriate ones to grant.
p. 4Appropriateness of judicial review remedies
In the premises thereto the Application dated the 12 th October 2018 is herein dismissed with costs.
p. 4Disposition

Issues in the judgment

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minor

Judgment refers to grounds of objection dated 7th March 2018, which precedes the impugned notices of 8th May 2018 and the application of 12th October 2018, an apparent dating inconsistency

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, "Paul Mwicigi Mbugua & another v Attorney General & 7 others [2020] KEELC 3817 (KLR)", Case Analysis (2020). Judicial Review Application dated 12th October 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3817/eng@2020-02-04

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