Whether The Decision Of The 1St Respondent Violated The Rules Of Natural Justice
23.The Ex-parte Applicant seeks orders to quash the decision in Appeal Case No. 114 of 2015 on the grounds that the decision reached was against the rules of natural justice. He contended that the trial before the Minister violated the principles of fair hearing. The Applicant submitted that he was not accorded an opportunity to prepare for his case before the Minister. He averred that the Notice served upon him was too short to enable him to avail his witnesses for the hearing.
24.He further stated that the 1st Respondent did not consider his evidence while making its decision. The Interested Party on the other hand averred that both parties were accorded an opportunity to adduce evidence, to call witnesses and to cross examine the adverse party.
25.In Onyango Oloo Vs Attorney General [1986-1989] EA 456 the Court of Appeal expressed itself as follows;
26.I have perused the proceedings and findings in Appeal Case No. 114 of 2015 conducted before the Deputy County Commissioner Kilungu Sub County. The Applicant was the Appellant, while the Interested Party was the Respondent. The Interested Party averred that the Applicant’s witness one Cosmas Kitumu was present during the hearing. From the proceedings before the Minister, Cosmas Mutie Kitumu of ID No. 5717027 was recorded to have been present.
27.However, it is evident that the Applicant did not call him to testify on his behalf. It is therefore not true that he was not accorded adequate time to avail his witnesses. He cannot therefore fault the Minister for not giving him time to call his witnesses as it is clear that his witness was present during the hearing of the appeal.
28.The Applicant faulted the Tribunal for not visiting the site and before making its decision. From the proceedings before the Minister, it is clear that the Tribunal adjourned the case after both parties concluded testifying to await for the site visit and verdict to be scheduled on a later date.
29.In her replying affidavit the Deputy County Commissioner averred that she found it unnecessary to visit the site as the evidence on record was adequate to determine the issue at hand.The parties and their witnesses were recorded as having been sworn and gave evidence.
30.It is evident that both parties participated in the proceedings by giving evidence, cross examination and calling witnesses. There is similarly no evidence on record, or material from which it may reasonably be inferred, that the Respondent was biased or unfair towards the Applicant.
31.The Applicant gave his testimony, he was allowed to cross-examine witnesses and fully participated in the proceedings. The Court finds absolutely no evidence of bias or unfair treatment.
32.There is no evidence to demonstrate that the Minister took into account irrelevant considerations or that he failed to take into account relevant considerations in the appeal. The Court is satisfied that the Applicant actively participated in the said proceedings and even cross-examined witnesses.
33.The Court would hardly intervene unless it is clearly demonstrated that the decision maker acted upon no evidence, or that he took into account irrelevant considerations and omitted the relevant factors. The Applicant has not demonstrated that such was case in the instant application.
34.Accordingly, the Court finds that the trial before the Minister adhered to the principles of fair hearing and as such there was no violation of the rules of natural justice.
Whether The Applicant Is Entitled To The Orders Sought
35.The Applicant contends that 1st Respondent did not grant him a fair hearing as espoused under Article 50(1) of the Constitution.
36.In my view, when the complaints of the Applicant are considered as a whole, it would appear that the Applicant is in reality aggrieved by the merits of the decision of the 1st Respondent.
37.They have nothing to do with the decision making process. This was, in effect, an appeal disguised as a judicial review application. The Court is of the opinion that the Applicant is challenging the merits of the Minister’s decision in the appeal. In the case of Municipal Council of Mombasa Vs Republic & Umoja Consultant Limited  eKLR the court held that;
38.Similarly, in Republic Vs Secretary of the Firearms Licensing Board & 2 Others Ex parte Senator Johnstone Muthama  eKLR it was held, inter alia, that;
39.In my opinion, a judicial review remedy would not be available in those circumstances.
40.The final issue relates to costs. Although the costs of an action are at the discretion of the court, the general and well established rule is that costs follow the event. See Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd  EA 287. So, a successful party should be awarded costs, unless, for good reason, the Court orders otherwise as provided for under section 27 (1) of the Civil Procedure Act (Cap 21).
41.The upshot of the foregoing is that the application dated 18th July, 2022 is hereby dismissed. Each party shall bear its own costs.