Republic v Multi-Sectoral Committee on Unsafe Structures & 4 others; Alpha Grain Millers Limited (Ex parte Applicant) (Miscellaneous Civil Application 173 of 2018) [2025] KEELC 6140 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Ex parte Applicant is entitled to the orders sought in the Notice of Motion, namely certiorari to quash the 1st Respondent's circular dated 25th September 2018, prohibition against interference with its title to LR No. 20750, and a declaration that it is the legal and beneficial owner of LR No. 20750
- 2.Whether the impugned circular offended the rules of natural justice and the statutory eviction notice requirements under the Land Act, 2012
- 3.Whether the constitutional rights under Article 40 and Article 47(1) of the Constitution can be determined in judicial review proceedings
- 4.Whether the prayer for a declaration of ownership of the suit property can issue in judicial review proceedings
Key legal issues
#Whether certiorari should issue to quash the demolition circular of 25th September 2018
Certiorari granted, but limited to the suit property LR No. 20750 only
The circular was issued without the Applicant participating in the proceedings culminating in it, despite the Applicant being in possession and conducting business on the land, offending natural justice. The circular was also issued under the repealed Wayleaves Act, rendering it null and void, and did not comply with the three-month notice and service requirements of sections 152C and 152E of the Land Act. Certiorari therefore sufficed, but only in respect of LR No. 20750.
Whether prohibition and a declaration of ownership could issue in judicial review proceedings
Refused
Judicial review examines the decision-making process, not merits, and a court may not substitute its own decision or determine title disputes on affidavit evidence. The prohibitory order as framed was too wide and could only issue upon a determination of lawful ownership. The validity of the Applicant's title is live in ELC No. 131 of 2015, and the related JR 176 of 2018 had already declined similar prayers. The forum was also unsuitable for determining the alleged Article 40 and 47(1) violations.
Whether the 1st Respondent had legal authority to issue the impugned circular
The circular was tainted as it was issued under the repealed Wayleaves Act and did not follow the statutory notice regime
The circular purported to be issued under the Physical Planning Act and the Wayleaves Act, but the latter was repealed in 2012, making the circular null and void. Further, the statutory statement under section 4(3) of the Fair Administrative Action Act and the eviction notice requirements of the Land Act were not complied with, and the Applicant was not heard before the circular issued.
Legal principles established
#- Judicial review concerns the decision-making process, not the merits of the decision; an applicant must show the decision was illegal, irrational or procedurally defective
- A dispute over ownership of land cannot be determined in a judicial review application through affidavit evidence
- An eviction notice under sections 152C and 152E of the Land Act must be issued three months prior to eviction and properly served on affected parties
- A decision made without affording an affected party a hearing, which seeks to evict a party in possession and conducting business, offends the rules of natural justice and is unreasonable
Court orders
#- 1.An order of certiorari to quash the 1st Respondent's circular of 25th September 2018 as regards LR No. 20750 only
- 2.The prayers for prohibition and declaration refused/disallowed
- 3.The Ex parte Applicant awarded only half of the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review under Section 7 and Section 8 of the Fair Administrative Action Act, 2015 and Article 47 of the Constitution (fair administrative action), following leave granted to institute judicial review proceedings
Relief refused
#Order of prohibiting the Respondents from reviewing, revoking, alienating or interfering with the Applicant's ownership and possession of LR No. 20750 or demolishing its development
The order was framed in very wide terms and could only be granted where a determination of lawful ownership has been made, which cannot be done in judicial review; ownership disputes are best dealt with in the pending civil suit ELC No. 131 of 2015
Declaration that the Applicant is the legal and beneficial owner of LR No. 20750
A dispute over ownership of land cannot be determined in judicial review through affidavit evidence; the validity of title is best dealt with in the pending civil suit ELC No. 131 of 2015
Findings/determination on alleged violations of Articles 40 and 47(1) of the Constitution
The Court was unable to address the constitutional rights in the judicial review forum, noting the Applicant had admitted it had not constructed on the property except a perimeter wall and that the Respondents had not interfered with the property since the circular
Costs
The Ex parte Applicant awarded only half of the costs of the suit
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.
I find that an Order of Certiorari would indeed sufice to quash the Circular of 25th September, 2018 as regards LR No. 20750 only. I however find that this is not the right forum to grant the rest of the Orders on validation of title, which the Ex parte Applicant seeks.
I find the prayers of Prohibition and Declaration sought in the instant Notice of Motion application unmerited and will disallow them. I will only allow the prayer for Certiorari as regards the quashing of the Circular of 25th September, 2018 in relation to LR No. 20750 only.
On the issue of costs, I note the majority of prayers have been disallowed and will award the Ex parte Applicant only half of the costs of the suit.
I opine that this ofiended the rules of natural justice and was unreasonable.
a dispute over ownership of land cannot be determined in a judicial review application through afidavit evidence.
Issues in the judgment
#Inconsistent spelling of the transferor company across the judgment ('Hagesman Limited' vs 'Hasgeman Limited')
Inconsistent title references in the Respondents' affidavit ('purported grant IR 150427 LR 20750' versus I.R 159427 LR 20750)
The Peninah Nadako Kilishwa case is attributed to the Supreme Court of Kenya although it bears an eKLR citation typically associated with the High Court
Kenya Airports Authority, in whose favour the impugned circular was issued, is noted as not being a party to the suit, making the exact identity/roles of the 3rd, 4th and 5th Respondents unclear from the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Multi-Sectoral Committee on Unsafe Structures & 4 others; Alpha Grain Millers Limited (Ex parte Applicant) (Miscellaneous Civil Application 173 of 2018) [2025] KEELC 6140 (KLR)", Case Analysis (2025). Judicial Review application arising from Notice of Motion dated 22nd October 2018 (Ex parte Applicant's motion; related files JR 175 of 2018 and JR 176 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6140/eng@2025-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.