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Court of AppealPartially AllowedCivil Appeal No. 195 of 2009· [2013] KECA 299 (KLR)

Muriuki & 4 others v Republic & 3 others (Civil Appeal 195 of 2009) [2013] KECA 299 (KLR)

Court of Appeal
26 June 2013
3,927 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This family land dispute concerned Ruguru/Gachika/83. The Land Disputes Tribunal awarded the land to the family; on appeal the Provincial Land Disputes Appeals' Committee ordered the suit land divided into equal portions among the appellants and the 4th respondent. That award was adopted as a decree of the Chief Magistrate's Court, Nyeri, on 12th July 2007. The 4th respondent's subsequent judicial review application for certiorari to quash the award failed, the High Court holding that certiorari proceedings had to be commenced within six months. He then filed a fresh judicial review suit seeking prohibition against the Chief Magistrate's Court to restrain execution of the decree. Kasango, J., on 26th February 2009, granted prohibition on the grounds that the tribunal's order of sub-division was ultra vires the Land Disputes Tribunal Act and a nullity. The Court of Appeal (Visram, Koome & Odek, JJ.A.) allowed the appeal. Applying Kenya National Examination Council, Exparte Geoffrey Gathenji Njoroge and Republic v University of Nairobi, the Court held that prohibition is pre-emptive and futuristic; it cannot issue to restrain a decision already completed. The proper remedy against the adopted decree was certiorari, which the 4th respondent had already lost, and he could not litigate in installments. The Court agreed the tribunal had exceeded its statutory jurisdiction in ordering sub-division, but found the dispute was not res judicata since the appellants were strangers to the earlier litigation. The appeal was allowed, the High Court judgment set aside, the Notice of Motion dismissed, and, as a family matter, each party ordered to bear their own costs.

Key legal issues

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01

Whether an order of prohibition can issue against a decree already adopted and in force

Holding

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.

Reasoning

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.

p. 7
02

Whether the Provincial Land Disputes Tribunal had jurisdiction to order sub-division and transfer of registered land

Holding

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.

Reasoning

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.

p. 7
03

Whether the tribunal proceedings were res judicata

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.Judgment of Kasango, J. dated 26th February, 2009 set aside
  3. 3.The respondents' Notice of Motion application dated 26th November, 2008 dismissed
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Land Disputes Tribunal ActSection 3(1)
  • Registered Land Act

Cases cited (3)

  • Kadamas v Municipality of Kisumu [1985] KLR
    [1985] KLR 955
  • Kenya National Examination Council, Exparte Geoffrey Gathenji Njoroge, C.A. No. 266 of 1996
    C.A. No. 266 of 1996
  • Republic v University of Nairobi, C.A. No. 73 of 2001
    C.A. No. 73 of 2001
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.