Muriuki & 4 others v Republic & 3 others (Civil Appeal 195 of 2009) [2013] KECA 299 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that judicial review orders of prohibition only stop decisions not yet made — you cannot use prohibition to undo a land decree that already exists.
What this practically means
#Executive summary
#Key legal issues
#Whether an order of prohibition can issue against a decree already adopted and in force
No. Prohibition is pre-emptive; it cannot operate retroactively to nullify a completed order. The appropriate remedy to set aside the adopted award was certiorari, which the 4th respondent had unsuccessfully pursued.
The Court applied its own precedents on the nature of prohibition. The Chief Magistrate's decree had been issued on 12th July 2007, about eighteen months before the prohibition order. Once the decision was complete, prohibition was unavailable; only certiorari could have quashed it. The Court found the learned Judge misapprehended the effect of the remedy, and observed that the order of prohibition was made in vain.
Whether the Provincial Land Disputes Tribunal had jurisdiction to order sub-division and transfer of registered land
The Tribunal exceeded the jurisdiction conferred by section 3(1) of the Land Disputes Tribunal Act when it ordered sub-division of the suit property; a declaration of occupation would have been within its limits, but a definitive order of subdivision and transfer was beyond the Act.
The Land Disputes Tribunal was a creature of statute limited to division or boundary determination of land held in common, claims to occupy or work land, and trespass. The Court read the dispute as one of occupation or common holding, but found the order of sub-division and transfer overstepped those limits, though the claim itself was not res judicata as the appellants were not parties to the earlier litigation.
Whether the tribunal proceedings were res judicata
The Court found the dispute was not res judicata because the appellants were not parties to the earlier litigation between Susan's brothers and the 4th respondent.
Although the point should have been raised before the tribunal, the Court examined the earlier proceedings before the Karatina Third Class District Magistrate, the Senior Resident Magistrate and the High Court and was satisfied the appellants were not parties there. The appellants, led by their mother, had started a fresh dispute claiming their own rights to occupy the property.
Legal principles established
#- An order of prohibition is pre-emptive and futuristic; it cannot issue to undo or restrain a decision that has already been made and completed - the remedy against a completed decision is certiorari.
- Prohibition lies only against an inferior tribunal or body proceeding in excess of jurisdiction or in contravention of the law, and does not lie to correct course, practice, procedure or a wrong decision on the merits.
- A party who loses on the appropriate judicial review remedy may not litigate in installments by filing a fresh suit for a different remedy.
Court orders
#- 1.Appeal allowed
- 2.Judgment of Kasango, J. dated 26th February, 2009 set aside
- 3.The respondents' Notice of Motion application dated 26th November, 2008 dismissed
- 4.Each party to bear their own costs
- On appeal from
- High Court of Kenya at Nyeri
- H.C. Misc. Appl. No. 288 of 2008 (referred to in the appeal header as 288 of 2009)
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court exercising judicial review jurisdiction (Constitution of Kenya, 2010, Article 164 and the applicable appeal provisions); no specific provision is quoted in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wambugu & 2 others v District Land Dispute Tribunal Othaya & 3 others (Civil Appeal 257 of 2013) [2013] KECA 46 (KLR)[2013] KECA 46 (KLR)21 Nov 2013
- Wachira Wambugu & 2 others v District Land Dispute Tribunal Othaya & 3 others [2013] KECA 82 (KLR)[2013] KECA 82 (KLR)21 Nov 2013
Cite this brief
#Cite this brief
Caselaw, "Muriuki & 4 others v Republic & 3 others (Civil Appeal 195 of 2009) [2013] KECA 299 (KLR)", Case Analysis (2013). Civil Appeal No. 195 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/299/eng@2013-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.