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ELCDismissedJudicial Review Application (Eldoret)· [2016] KEELC 388 (KLR)

Kabararwa Clan v Kirawi Clan [2016] KEELC 388 (KLR)

High Court of Kenya
28 October 2016
AOAntony Ombwayo
1,811 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a clan's attempt to block execution of a land tribunal award because they used the wrong legal remedies, sued the wrong party, and waited far too long.

What this practically means

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Executive summary

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The Kabararwa Clan applied for leave to commence judicial review proceedings for prohibition to stop the Kirawi Clan from executing an award of the Marakwet Land Dispute Tribunal delivered on 26th February 2007, and for mandamus to compel the District Commissioner, Marakwet District not to subdivide the disputed parcel following the award, with leave to operate as a stay of execution. The applicant, through the affidavit of James Rotich, claimed ancestral ownership and peaceful possession, alleged it was not accorded a chance to appeal and that the award was adopted at Iten on 7th June 2011. The respondent, through Richard Chelanga Kande's replying affidavit, opposed the application as incompetent under Order 53, arguing the award was lawfully adopted and unchallenged on appeal, that writs do not lie against private citizens, that the Tribunal, District Commissioner and Magistrate's Court were not enjoined, and that the application was brought after about ten years' delay. Counsel for the applicant invoked the court's discretion to do justice; counsel for the respondent submitted that writs cannot issue against a private clan nor prohibit execution of a decree. The court, Ombwayo J, held that prohibition is powerless against a decision already made, that mandamus is the wrong remedy where a duty was allegedly wrongly performed, that the mandamus prayer was superfluous since it sought to prohibit rather than compel, that any certiorari was time-barred given adoption on 23rd February 2011, and that judicial review cannot be directed at a private clan. The application was dismissed with costs.

Key legal issues

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01

Availability of prohibition against an already-made and adopted Tribunal award

Holding

Prohibition cannot lie to stop execution of a decision already made and adopted; it only prevents the making of a decision

Reasoning

The court restated the settled scope of prohibition: it is directed to an inferior tribunal acting in excess of jurisdiction or in breach of natural justice, but operates only prospectively. Since the Marakwet Land Dispute Tribunal's award had already been made and adopted by the Magistrate's Court, prohibition was the wrong remedy to arrest execution of the decree.

p. 3
02

Availability of mandamus to stop subdivision of the disputed parcel

Holding

The mandamus prayer fails because it is superfluous and seeks prohibition rather than compulsion of a statutory duty

Reasoning

Mandamus compels performance of a public duty imposed by statute; it is the wrong remedy where the complaint is of wrongful performance, and like prohibition it cannot undo what has been done. The prayer to compel the District Commissioner not to subdivide was in substance a prohibition and therefore defective.

p. 3
03

Delay and absence of certiorari

Holding

Even if certiorari leave had been sought, delay defeated it, the six-month limit under section 9(3) of the Law Reform Act and Order 53 rule 2 having long expired

Reasoning

The award was adopted on 23rd February 2011, about five to six years before the application, far beyond the six-month statutory window for certiorari. Certiorari was in any event not sought, so the court could not quash the adopted award and the application had to fail.

p. 3
04

Proper respondents in judicial review

Holding

The application was misdirected against a clan rather than the Tribunal or public officers

Reasoning

The court held that judicial review targets public bodies, inferior tribunals and persons in authority. The applicant had directed the application against the Kirawi clan, a private entity, while the Tribunal, the District Commissioner and the Magistrate's Court were not enjoined, rendering the application incompetent.

p. 3

Legal principles established

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  • Prohibition lies only to prevent a decision not yet made and cannot correct an inferior tribunal's decision on the merits
  • Only certiorari can quash a decision already made, and mandamus cannot compel or correct a wrongly performed duty
  • Judicial review must be commenced against public bodies, inferior tribunals or persons in authority, not private individuals or clans

Court orders

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  1. 1.The application is dismissed with costs
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and the Law Reform Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kabararwa Clan v Kirawi Clan [2016] KEELC 388 (KLR)", Case Analysis (2016). Judicial Review Application (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/388/eng@2016-10-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.