Market Plaza Limited Vs Commissioner for Lands, National Land Commission, City Market Stall Holders Association, and Ethics and Anti-Corruption Commission (2019) eKLR

Case Caption:

In the Court of Appeal at Nairobi; Coram Ouko (P), Nambuye & Warsame, JJ.A; Civil Appeal No. 266 of 2017; Market Plaza Limited (Appellant) v Commissioner for Lands, National Land Commission, City Market Stall Holders Association, and Ethics and Anti-Corruption Commission (1st – 4th Respondents respectively)

Case URL:

http://kenyalaw.org/caselaw/cases/view/180143

Summary Significance:

Judicial review orders are discretionary. Therefore, the court may decline them where better remedies exist. Further, judicial review orders should be sought as a last resort and only where special circumstances exist.

Applicable laws:

●Articles 10, 25, 27, 40, 47 and 50 of the Constitution of Kenya, 2010
●Sections 12 and 13 of the Government Land Act Cap 280; Laws of Kenya (Repealed)
●Sections 61 and 23 (1) of the Registration of Titles Act, Cap 281; Laws of Kenya

Brief Facts:

The Appellant acquired land parcel no. LR No. 209/1855/2 (the suit property) for a consideration of Kshs. 2,000,000 from the City Council of Nairobi. The suit property is said to have been part of the land known as LR. No. 209/1855, which had been reserved for use by the colonial government of Kenya as a Municipal market. The parcel was subsequently subdivided in the 1990’s with the suit property being transferred to the Appellant while the other portion was left in the possession of the City Council of Nairobi for use as a public market. In 2010, the Land Registrar revoked the Appellant’s title on the grounds that the property in question was public land. Consequently, the Appellant moved to court seeking orders of certiorari, mandamus and prohibition against the Respondents on the grounds that the Registrar had acted ultra vires of their power as they had no power to cancel a title save as directed by the court under Section 61 of the Registration of Titles Act (RTA). Further, the Appellant cited Section 23 (1) of the RTA, averring that the certificate of title was conclusive evidence of title. The Appellant also asserted that the cancellation of their title violated Article 40 of the Constitution of Kenya. The issue for determination at the High Court was whether the Registrar had acted unreasonably and unlawfully in revoking the Appellant’s title. The court found in the affirmative. It stated that the suit property had been illegally and irregularly acquired. Therefore, the Registrar acted within their mandate to revoke the title and return it to its intended use. However, in the instant case, the issue of validity of title was yet to be determined. Therefore, the Registrar had acted irregularly by revoking the title. However, the court declined to give the orders sought till the issue of validity of title was determined, leading to the present appeal.

Issues for Determination:

I.Whether the learned judge failed to exercise their discretion when declining to grant the judicial review orders
II.Whether judicial review orders were the most efficacious remedy available in the circumstances.

Holding:

In determining the issues, the court stated that the purpose of judicial review is to determine whether an Applicant was treated fairly by the concerned public body. However, the court stated that judicial review remedies are discretionary and not guaranteed, and that a court may decline the orders even when requisite grounds exist. This is because the court has to weigh the judicial review remedies against the other available remedies to determine the most efficacious one. Further, the court stated that the court’s discretion was a judicial one hence had to be exercised on the sound evidence and legal principles. In the present case, the Appellant had submitted that he had a right to property. However, this averment was contradicted by evidence illustrating that the property had been acquired irregularly. The Court of Appeal stated that the High Court conducted a proportionality test to assess the Appellant’s right to property and the public’s right to enjoy the suit property. The High Court determined that an alternative remedy in civil proceedings to determine the validity of title existed and judicial review orders would not have been the most efficacious in this case. Therefore, judicial review orders should have been sought as a last resort. In light of this, the Court of Appeal found that the High Court judge had properly exercised their discretion. Further, it agreed that judicial review orders should be sought as a last resort and only in exceptional circumstances which the present case had not satisfied. The appeal was dismissed.

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