The application is brought under Order 53 Rules (1) & (2) of the Civil Procedure Rules 2010, Sections 1, 1A 3, 3A and 63 (e) of the Civil Procedure Act, Cap. 21 of the Laws of Kenya sections 7 and 8 of The Fair Administration Act No. 4 of 2015 seeking the following orders;
1. An order of mandamus compelling the National Land Commission, the Respondent herein, to release the determination with respect to the complaint lodged by the Applicant on irregular acquisition of land set aside for public use within Syokimau Machakos County the subject of hearing conducted by the 1st Respondent on diverse dates on 10th December 2018, 11th December 2018, 15th December 2018, 4th January 2019 and 11th January 2019 this being their statutory obligation as mandated by law.
2. Costs of this application be borne by the Respondents in favor of the Applicant.
The application is based upon the grounds set out in the Statutory Statement and verifying affidavit of Juliet Isaac Wamiri sworn on 30th June 2021 accompanying the application for leave dated 30th June 2021. The Ex parte Applicant stated that indeed the 1st Respondent commenced investigation into their complaint and had a hearing for the interested parties for the same which concluded on 11th January 2019. To date the 1st Respondent has not made a determination of recommendations pursuant to their findings.
This court has considered the judicial review application and the submissions therein. The purpose of judicial review was enunciated in the case of Municipal Council of Mombasa vs Republic Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007(2002) eKLR, where the Court of Appeal held that;
“The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who make the decision have the power i.e the jurisdiction to make it. Were the persons affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters. These are the kind of questions a court hearing a matter by way of judicial review is concerned with and such court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself - such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review”.
It is trite law that a court exercising judicial review jurisdiction is only concerned with the procedural propriety of a decision and not the merits. This position was adopted by the court in Associated Provincial Picture Houses, Ltd. vs Wednesbury Corporation (1947) 2 All E.R 680. As a result, it is only in exceptional circumstances that the court can consider merits of a decision. These exceptional circumstances were enumerated by the learned Mumbi Ngugi J in Republic vs Public Procurement Administrative Review Board & 2 others Ex Parte - Sanitam Services (E.A) Limited
(2013) eKLR, while citing the Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation (supra) namely:
“where the administrative body has acted outside its jurisdiction, has taken into account matters it ought not to have taken into account, or failed to take into account matters it ought to have taken into account; or that it has made a decision that is ‘so unreasonable that no reasonable authority could ever come to it.”
The remedy of judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision- making process as was held by Mumbi Ngugi J in the case of Republic vs Public Procurement Administrative Review Board & 2 others Ex Parte - Sanitam Services (E.A) Limited (supra),
“That the purpose of the remedies availed to a party under the judicial review regime is to ensure that the individual is given fair treatment by the authority to which he has been subjected. The purpose is not to substitute the opinion of the court for that of the administrative body in which is vested statutory authority to determine the matter in question.”
In the case of Seventh Day Adventist Church (East Africa) Limited vs Permanent Secretary, Ministry of Nairobi Metropolitan Development & another (2014) eKLR, the court held that;
“Where an applicant brings judicial review proceedings with a view to determining contested matters of facts with an intention of securing a determination on the merits of the dispute the Court would not have jurisdiction in a judicial review proceeding to determine such a dispute and would leave the parties to ventilate the merits of the dispute in the ordinary civil suits.”
Similarly, in the case of Commissioner of Lands vs Kunste Hotel Limited (1997) eKLR (E & L) 1 at page 249, the Court of Appeal stated that;
“But it must be remembered that Judicial Review is concerned not with private rights or the merits of the decision being challenged but with the decision making process. Its purpose is to ensure that the individual is given fair treatment by the authority to which he has been subjected”.
In the case of R vs Kenya National Examination Council Exparte Geoffrey Gathenji & 9 Others, Civil Appeal No.266 of 1996 the Court of Appeal while discussing the remedy of mandamus cited with approval a passage in Halsbury's Laws of England 4th Edition Vol. 1(1) Page 111 paragraph 89 and 90 wherein the authors have stated;
“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual……the order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way”.
The 1st Respondents opposed the application and stated that during the historical review of the subject matter parcel LR. No. 12715/189 was erroneously omitted from the list of disputed parcels sent to the Chief Land Registrar for restrictions. That the Commission needs more time to comprehensively audit, reconcile and incorporate all the public utility allocations including LR. No. 12715/189 into its final written determination. The 1st to 10th Interested parties submitted that the Applicants by filing this matter appear to have abandoned its forum before the NLC and this action amounts to forum shopping. The 1st Respondent asked for more time to comply.
The essence of an order of mandamus is to compel a public body to perform a duty required of it by the law. In Republic vs Kenya Vision 2030 Board & another Ex-parte Eng Judah Abekar (2015) eKLR, the court held that;
“From the cited decisions, it is apparent that an order of mandamus will issue to compel the performance of a statutory duty owed to an applicant. Therefore,the fulcrum of an order of mandamus is that a statutory duty must be owed to an applicant and the public officer or public body, after being asked to perform the
duty, has refused or failed to discharge that duty and there is no other adequate remedy.”
The purpose of an order of mandamus was explained in Ex prte Gathenji (supra) to the effect that:
“...Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal
right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”
The 1st Respondent is a public body and have failed to make a decision on the Ex parte Applicant`s claim within reasonable time. It is more than seven years since when the Ex parte Applicant lodged the complaint. This in my consideration amounts to inordinate delay. I am of the view an order of mandamus is the most appropriate remedy in this matter and the same should issue to compel the 1st Respondent to act on the Ex parte Applicant`s claim within a limited period of time. It is my considered view, therefore, that the application is merited and I grant the following orders;
1. An order of mandamus compelling the National Land Commission, the 1st Respondent herein, to release the determination with respect to the complaint lodged by the Applicant on irregular acquisition of land set aside for public use within Syokimau Machakos County the subject of hearing conducted by the 1st Respondent on diverse dates on 10th December 2018, 11th December 2018, 15th December 2018, 4th January 2019 and 11th January 2019 within the next three months from the date of this judgement.
2. Costs of this application to the Ex parte Applicant.
1. An order of mandamus compelling the National Land Commission, the Respondent herein, to release the determination with respect to the complaint lodged by the Applicant on irregular acquisition of land set aside for public use within Syokimau Machakos County the subject of hearing conducted by the 1st Respondent on diverse dates on 10th December 2018, 11th December 2018, 15th December 2018, 4th January 2019 and 11th January 2019 this being their statutory obligation as mandated by law.
2. Costs of this application be borne by the Respondents in favor of the Applicant.
The application is based upon the grounds set out in the Statutory Statement and verifying affidavit of Juliet Isaac Wamiri sworn on 30th June 2021 accompanying the application for leave dated 30th June 2021. The Ex parte Applicant stated that indeed the 1st Respondent commenced investigation into their complaint and had a hearing for the interested parties for the same which concluded on 11th January 2019. To date the 1st Respondent has not made a determination of recommendations pursuant to their findings.
This court has considered the judicial review application and the submissions therein. The purpose of judicial review was enunciated in the case of Municipal Council of Mombasa vs Republic Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007(2002) eKLR, where the Court of Appeal held that;
“The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who make the decision have the power i.e the jurisdiction to make it. Were the persons affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters. These are the kind of questions a court hearing a matter by way of judicial review is concerned with and such court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself - such as whether this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review”.
It is trite law that a court exercising judicial review jurisdiction is only concerned with the procedural propriety of a decision and not the merits. This position was adopted by the court in Associated Provincial Picture Houses, Ltd. vs Wednesbury Corporation (1947) 2 All E.R 680. As a result, it is only in exceptional circumstances that the court can consider merits of a decision. These exceptional circumstances were enumerated by the learned Mumbi Ngugi J in Republic vs Public Procurement Administrative Review Board & 2 others Ex Parte - Sanitam Services (E.A) Limited
(2013) eKLR, while citing the Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation (supra) namely:
“where the administrative body has acted outside its jurisdiction, has taken into account matters it ought not to have taken into account, or failed to take into account matters it ought to have taken into account; or that it has made a decision that is ‘so unreasonable that no reasonable authority could ever come to it.”
The remedy of judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision- making process as was held by Mumbi Ngugi J in the case of Republic vs Public Procurement Administrative Review Board & 2 others Ex Parte - Sanitam Services (E.A) Limited (supra),
“That the purpose of the remedies availed to a party under the judicial review regime is to ensure that the individual is given fair treatment by the authority to which he has been subjected. The purpose is not to substitute the opinion of the court for that of the administrative body in which is vested statutory authority to determine the matter in question.”
In the case of Seventh Day Adventist Church (East Africa) Limited vs Permanent Secretary, Ministry of Nairobi Metropolitan Development & another (2014) eKLR, the court held that;
“Where an applicant brings judicial review proceedings with a view to determining contested matters of facts with an intention of securing a determination on the merits of the dispute the Court would not have jurisdiction in a judicial review proceeding to determine such a dispute and would leave the parties to ventilate the merits of the dispute in the ordinary civil suits.”
Similarly, in the case of Commissioner of Lands vs Kunste Hotel Limited (1997) eKLR (E & L) 1 at page 249, the Court of Appeal stated that;
“But it must be remembered that Judicial Review is concerned not with private rights or the merits of the decision being challenged but with the decision making process. Its purpose is to ensure that the individual is given fair treatment by the authority to which he has been subjected”.
In the case of R vs Kenya National Examination Council Exparte Geoffrey Gathenji & 9 Others, Civil Appeal No.266 of 1996 the Court of Appeal while discussing the remedy of mandamus cited with approval a passage in Halsbury's Laws of England 4th Edition Vol. 1(1) Page 111 paragraph 89 and 90 wherein the authors have stated;
“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual……the order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way”.
The 1st Respondents opposed the application and stated that during the historical review of the subject matter parcel LR. No. 12715/189 was erroneously omitted from the list of disputed parcels sent to the Chief Land Registrar for restrictions. That the Commission needs more time to comprehensively audit, reconcile and incorporate all the public utility allocations including LR. No. 12715/189 into its final written determination. The 1st to 10th Interested parties submitted that the Applicants by filing this matter appear to have abandoned its forum before the NLC and this action amounts to forum shopping. The 1st Respondent asked for more time to comply.
The essence of an order of mandamus is to compel a public body to perform a duty required of it by the law. In Republic vs Kenya Vision 2030 Board & another Ex-parte Eng Judah Abekar (2015) eKLR, the court held that;
“From the cited decisions, it is apparent that an order of mandamus will issue to compel the performance of a statutory duty owed to an applicant. Therefore,the fulcrum of an order of mandamus is that a statutory duty must be owed to an applicant and the public officer or public body, after being asked to perform the
duty, has refused or failed to discharge that duty and there is no other adequate remedy.”
The purpose of an order of mandamus was explained in Ex prte Gathenji (supra) to the effect that:
“...Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal
right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”
The 1st Respondent is a public body and have failed to make a decision on the Ex parte Applicant`s claim within reasonable time. It is more than seven years since when the Ex parte Applicant lodged the complaint. This in my consideration amounts to inordinate delay. I am of the view an order of mandamus is the most appropriate remedy in this matter and the same should issue to compel the 1st Respondent to act on the Ex parte Applicant`s claim within a limited period of time. It is my considered view, therefore, that the application is merited and I grant the following orders;
1. An order of mandamus compelling the National Land Commission, the 1st Respondent herein, to release the determination with respect to the complaint lodged by the Applicant on irregular acquisition of land set aside for public use within Syokimau Machakos County the subject of hearing conducted by the 1st Respondent on diverse dates on 10th December 2018, 11th December 2018, 15th December 2018, 4th January 2019 and 11th January 2019 within the next three months from the date of this judgement.
2. Costs of this application to the Ex parte Applicant.