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ELCDismissedJudicial Review No 8 of 2012· [2017] KEELC 1990 (KLR)

Republic v Kirinyaga County Council & another Exparte Stephen Muriithi Njeru & another [2017] KEELC 1990 (KLR)

High Court of Kenya at Kerugoya
5 May 2017
1,957 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 judicial review bid because the applicants were really appealing a magistrate's decision while an appeal was already pending.

What this practically means

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Executive summary

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The ex-parte applicants, Stephen Muriithi Njeru and James Kamaru Mathenge, moved the Court by Notice of Motion dated 20th December 2012 seeking orders of certiorari to quash the ruling of Hon. K.K. Cheruiyot dated 26th October 2012 in Kerugoya Senior Principal Magistrate's Civil Case No. 145 of 2012, leave to apply for prohibition against the Kirinyaga County Council, and mandamus compelling the Kirinyaga Land District Officer to cancel title No. BARAGWI/RAIMU/38 and reinstate titles No. BARAGWI/RAIMU/2281 to 2305. They claimed to be the lawful owners of the subdivided parcels following litigation decided in their favour in Nyeri High Court Civil Case No. 265 of 1997, affirmed on appeal in Civil Appeal No. 242 of 2000, and alleged that orders cancelling their titles were fraudulently obtained in the magistrate's court, though later set aside as res judicata, with a stay of execution granted. The 1st respondent opposed, arguing the application was an abuse of process and that an appeal against the same orders was pending. Olao J framed the application against the settled parameters of judicial review: the court examines the decision-making process, not the merits, and does not sit as a court of appeal over the decider. The Court noted the plaintiffs and defendants in the magistrate's suit had not been joined despite being affected, that judicial review is a remedy of last resort, and that an appeal against the very same decision was pending before the same Court. Certiorari being discretionary, the Court declined to exercise its discretion in the applicants' favour and dismissed the Notice of Motion with costs to the 1st respondent.

Key legal issues

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01

Scope of judicial review

Holding

Judicial review is concerned with the decision-making process, not the merits of the decision

Reasoning

The Court adopted the Court of Appeal's parameters in Municipal Council of Mombasa v Republic & Umoja Consultants, that a reviewing court examines whether the decision maker had jurisdiction, whether affected persons were heard, and whether relevant matters were considered. The Court should not act as a court of appeal over the decider by assessing the sufficiency of evidence.

p. 1
02

Alternative remedies and discretion

Holding

Where an appeal is pending against the same decision, judicial review is not the efficacious remedy and the Court may refuse the orders sought

Reasoning

The applicants' grievances over the Magistrate's ruling in Kerugoya SPMMC No. 145 of 2012 were already the subject of a pending appeal (formerly HC Civil Appeal No. 19 of 2012, now ELCA No. 125 of 2013). Judicial review is a remedy of last resort, and the application in substance appealed the merits of the Magistrate's decision. Certiorari being discretionary, the Court declined to grant the orders.

p. 4
03

Non-joinder of affected parties

Holding

The persons affected by the orders sought had not been made parties to the judicial review proceedings

Reasoning

The leave granted required service on all persons affected. The judicial review sought to impugn the ruling in Kerugoya SPMMC No. 145 of 2012, yet the plaintiffs and defendants in that suit were not made parties, even though the orders sought would affect them.

p. 3

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision itself
  • Judicial review is a remedy of last resort where alternative remedies exist
  • Certiorari is a discretionary remedy which the Court may refuse even where grounds for its grant exist
  • Where there is a clear procedure to address a particular grievance, it should be followed

Court orders

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  1. 1.The applicants' Notice of Motion dated 20th December 2012 and filed on the same day is dismissed
  2. 2.Costs of the application awarded to the 1st respondent

Authorities

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Legislation

  • Halsbury's Laws of England, 4th EditionVolume 2, Page 508

Cases cited (6)

  • Municipal Council of Mombasa vs Republic and Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Commissioner of Lands vs Kunste Hotel Limited
    (1997) e K.L.R (E & L) 1
  • Republic vs Inland Revenue Commissioner Ex-parte Opman International
    1986 1 All E.R 328
  • Re-Preston
    1985 A.C 835
  • Speaker of National Assembly vs Karume
    C.A Civil Application No. 92 of 1992 (2008 1 K.L.R 426)
  • Bluesea Shopping Mall Limited vs City Council of Nairobi and Others
    C.A Civil Appeal No. 129 of 2013 (NBI)
Jurisdiction invoked
Judicial review jurisdiction of the High Court (orders of certiorari, prohibition and mandamus sought under the law of judicial review)

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, "Republic v Kirinyaga County Council & another Exparte Stephen Muriithi Njeru & another [2017] KEELC 1990 (KLR)", Case Analysis (2017). Judicial Review No 8 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1990/eng@2017-05-05

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