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ELCDismissedJudicial Review Notice of Motion dated 24th January 2022 (arising from Leave granted 20th January 2022)

Republic v Cabinet Secretary Ministry of Lands & Physical Planning & 3 others; Mitambo (Exparte); Njiru (Interested Party) (Environment and Land Judicial Review Case E001 of 2022) [2022] KEELC 3255 (KLR)

High Court of Kenya
8 June 2022
6,907 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kenya's High Court confirmed the Lands Minister can delegate land appeal hearings to any public officer, and judicial review cannot be used to re-argue a lost case.

What this practically means

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Executive summary

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By a notice of motion dated 24th January 2022, following leave granted on 20th January 2022, the ex-parte applicant sought certiorari to quash and prohibition against implementing the decision of the Minister dated 20th December 2021 in Appeal No. 194 of 2019 concerning Land Parcel No. 544 Kamwimbi 'A' Adjudication Section, which was decided in favour of the interested party. The applicant principally argued that the appeal was heard by an Assistant County Commissioner rather than the Deputy County Commissioner, that the Minister applied wrong policy under Cap 284, considered extraneous matters, ignored his chief's letters, conducted a fresh hearing instead of reviewing the record, failed to visit the suit land as intimated, and was biased. The Respondents filed grounds of opposition, invoking Section 29(4) delegation; the interested party filed a replying affidavit and submissions denying the factual premises and contending the application attacked the merits. The court framed three issues: jurisdiction of the hearing officer, exercise of statutory duties, and availability of judicial review orders. It held the Minister validly delegated his powers to any public officer including an Assistant County Commissioner, that the applicant had submitted to that jurisdiction without raising the objection at the earliest time; that Section 29 prescribes no procedure, so the Minister could hear evidence afresh and need not visit the land; and that the bias allegation was unfounded. Judicial review being concerned with process rather than merits, the court found the application was a disguised merits challenge without proof of illegality, irrationality or procedural impropriety, and dismissed the motion with costs to the Respondents and the Interested Party on 8th June 2022.

Questions the Court framed

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

  1. 1.Whether the person who heard the appeal on behalf of the 1st Respondent had jurisdiction.
  2. 2.Whether the Respondents exercised their statutory duties as envisaged in the law.
  3. 3.Whether the orders of Judicial Review are available.

Key legal issues

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01

Whether the Assistant County Commissioner had jurisdiction to hear the appeal on behalf of the Minister

Holding

The objection fails; the Minister validly delegated his powers under Section 29(4) of the Land Adjudication Act to any public officer including an Assistant County Commissioner, and the ex-parte applicant had submitted to that jurisdiction without objection at the earliest time.

Reasoning

The court found it not in dispute that the applicant received notices, appeared before the minister's representative and participated in the hearing. Having subjected himself to the delegated jurisdiction, he could not disown it after an adverse outcome. Statutorily, Section 29(4) permits delegation to any public officer, which the court held includes an Assistant County Commissioner.

p. 11
02

Whether the Minister's delegate exercised statutory duties properly (procedure, locus visit, extraneous matters, bias)

Holding

Yes; Section 29 prescribes no procedure, the Minister may hear evidence afresh, need not visit the land, and the bias allegation was mere conjecture unsupported by facts.

Reasoning

The court held there is no prescribed procedure for ministerial appeals, so the Civil Procedure Act rules do not apply; the Minister's duty is to determine the appeal and make just orders. Nothing bars hearing evidence afresh, and no obligation existed to visit the suit land. On bias, the delegate had discretion on credibility, and the applicant never suggested he was denied a hearing.

p. 12
03

Whether judicial review orders (certiorari and prohibition) were available

Holding

No; judicial review concerns the decision-making process, not the merits, and the application was in substance a merits challenge with no proof of illegality, irrationality, procedural impropriety or bias.

Reasoning

The court reiterated that judicial review examines process, not merits, citing Municipal Council of Mombasa and Republic v Kenya Revenue Authority ex-parte Yaya Towers. It found the application attacked the merits of the minister's decision, that there was no evidence of illegality, irrationality or procedural impropriety, and that bias and extraneous-matter allegations were unproved.

p. 12

Legal principles established

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  • The Minister may delegate his appellate powers under the Land Adjudication Act to any public officer, including an Assistant County Commissioner.
  • The Minister hearing an appeal under Section 29 of the Land Adjudication Act is not bound by prescribed court procedure, may hear evidence afresh, and is under no obligation to visit the locus in quo.
  • A party who willingly submits to a jurisdiction cannot later disown it when the decision goes against him; jurisdictional objections must be raised at the earliest opportunity.

Court orders

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  1. 1.The notice of motion dated 18th January, 2021 is dismissed with costs to the Respondents and the Interested Party.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction of the High Court under the Fair Administrative Action Act and order of leave granted 20th January 2022; challenged decision made under the Land Adjudication Act Cap 284, Section 29

Relief refused

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Order of Certiorari to quash the minister's decision in Appeal No. 194 of 2019

No evidence the decision was illegal, irrational, procedurally improper or biased; the application attacked the merits rather than the process

p. 12

Order of Prohibition restraining implementation of the minister's decision

Judicial review orders not available where the process was proper; jurisdiction objection failed because the minister may delegate under Section 29(4)

p. 11

Costs of the application

Application dismissed with costs to Respondents and Interested Party

p. 12

Costs

Application dismissed with costs to the Respondents and the Interested Party.

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.

You cannot have your cake and eat it. You cannot willingly subject yourself to a jurisdiction and when the matter goes against you, you seek to disown that jurisdiction.
p. 11submission to jurisdiction and timing of jurisdictional objections
pursuant to the provisions of Section 29(4) of the Land Adjudication Act, the minister had authority to delegate his powers to any pubic oficer. This in my view incudes an Assistant County Commissioner.
p. 11delegation of minister's powers under the Land Adjudication Act
nothing set out in the Act bars the minister from hearing evidence afresh. That being the case, the 1st Respondent was not under any obligation to visit the suit land, if at all he did not.
p. 12ministerial appeals - no prescribed procedure, fresh evidence and locus visit
The allegation of bias is therefore a mere conjecture not based on any facts and I reject it.
p. 12bias allegation
Consequently, the notice of motion dated 18th January, 2021 is dismissed with costs to the Respondents and the Interested Party.
p. 12final orders/disposition

Issues in the judgment

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minor

The notice of motion is dated 24th January 2022 in the opening paragraph, but the disposition refers to it as 'dated 18th January, 2021', an earlier date that is internally inconsistent.

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, "Republic v Cabinet Secretary Ministry of Lands & Physical Planning & 3 others; Mitambo (Exparte); Njiru (Interested Party) (Environment and Land Judicial Review Case E001 of 2022) [2022] KEELC 3255 (KLR)", Case Analysis (2022). Judicial Review Notice of Motion dated 24th January 2022 (arising from Leave granted 20th January 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3255/eng@2022-06-08

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