Commissioner of Police & 2 others v Joseph Mburu Gitau & 634 others [2020] KECA 380 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you cannot use a judicial review prohibition order to stop an eviction that has already happened.
What this practically means
#Executive summary
#Key legal issues
#Whether prohibition was available where the eviction had already occurred
The order of prohibition was inappropriate because the eviction complained of had already taken place on 24th March 2005; prohibition looks to the future only
The Court reiterating the Geothnji principles found the respondents' own verifying affidavit showed they had already been evicted on 24th March 2005. Since the action complained of was not a contemplated future action but one already executed, prohibition was powerless. The learned Judge therefore misdirected himself in granting the order, warranting appellate interference with his discretion.
Whether judicial review was the proper forum for a land ownership dispute
The High Court sitting as a judicial review court was not called upon to determine ownership of the suit property; such disputes belong before the Environment and Land Court
The respondents' grounds raised a dispute over land ownership and allocation of public land. The police, whose action was impugned, had no power to issue or cancel title, that power resting with the Registrar of Titles. Disputed facts of allocation of public land cannot be resolved in judicial review; the proper forum was the Environment and Land Court.
Standard of appellate interference with judicial review discretionary orders
Judicial review orders are discretionary and an appellate court may interfere only where the judge misdirected himself or was clearly wrong, occasioning injustice
Guided by Kenya Revenue Authority v Darasa Investments and Maina v Mugiria, the Court held it must move cautiously and interfere with the Judge's discretion only if satisfied it was not exercised judicially. It found the Judge misdirected himself by issuing prohibition against a completed action, and accordingly set the order aside.
Legal principles established
#- An order of prohibition cannot issue against a decision or action that has already been made or executed; it lies only against contemplated action
- Disputed facts concerning allocation of public land and issuance of title are matters for the Environment and Land Court, not judicial review proceedings
- An appellate court will not interfere with a judge's exercise of discretion unless satisfied it was not exercised judicially
Court orders
#- 1.The appeal is allowed
- 2.The judgment and order of prohibition made by the High Court (Nyamu, J) are set aside
- 3.Each party shall bear their own costs
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Application No. 673 of 2008
- Jurisdiction invoked
- Appeal under the Court of Appeal's appellate jurisdiction over High Court judicial review decisions (Judgment and Decree of the High Court dated 2nd May 2008), pursuant to the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Commissioner of Police & 2 others v Joseph Mburu Gitau & 634 others [2020] KECA 380 (KLR)", Case Analysis (2020). Civil Appeal No. 179 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/380/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.