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ELCDismissedJudicial Review Application (Chamber Summons dated 17th April, 2015)· [2017] KEELC 3608 (KLR)

Joseph Nderu Wangece & 8 others v Vincent Nyigi Nderitu & 3 others [2017] KEELC 3608 (KLR)

High Court of Kenya
24 January 2017
LWL N Waithaka
1,443 words in judgment
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The bottom line

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The High Court confirmed you cannot use judicial review to challenge another High Court's judgment; your only options are appeal or review.

What this practically means

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Executive summary

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By a chamber summons dated 17th April 2015, the applicants sought leave to institute judicial review proceedings against the judgment of Ombwayo J. delivered on 19th February 2015 in Nyeri High Court Petition No. 4 of 2012 (Vincent Nyingi Nderitu v Hon. Attorney General & Others), in which the court had declared the 1st respondent's title to Nyandarua/Njabini/656 protected under Article 40, ordered the applicants to vacate and restrained them from trespassing. Leave was also to operate as stay of execution of the decree. The 1st respondent raised a preliminary objection contending that the application violated Article 165(6) of the Constitution, that the court lacked jurisdiction, that orders could not issue against a private person, and that the matter was res judicata. The 2nd to 4th respondents similarly argued the application was defective and an abuse of process. The applicant argued that the issues were dissimilar, the current proceedings concerning validity of title while the earlier suit concerned ownership. Waithaka J. held that the High Court's supervisory jurisdiction under Article 165(6) extends only to subordinate courts and that a superior court's judgment can only be challenged by appeal or review, adopting Peter Ng'ang'a Muiruri v Credit Bank Ltd and Civicon Ltd v KRA. The application was found to be a collateral attack, misconceived, a gross abuse of process, and res judicata. The court dismissed the application with costs to the respondents.

Key legal issues

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01

Whether a decision of a superior court is amenable to judicial review

Holding

No - judicial review under Article 165(6) lies only over subordinate courts, tribunals and persons exercising judicial or quasi-judicial functions; the intended review of Ombwayo J.'s judgment was misconceived

Reasoning

The court adopted the Court of Appeal decision in Peter Ng'ang'a Muiruri v Credit Bank Ltd, holding that the High Court cannot supervise a superior court of concurrent jurisdiction. The proper remedy against a superior court judgment is appeal or review. Seeking a different decision on the same matter through a fresh proceeding is an abuse of court process.

p. 3
02

Res judicata

Holding

The application, insofar as it seeks to re-litigate the title and ownership of the suit property already determined in Nyeri High Court Petition No. 4 of 2012, is res judicata

Reasoning

The issues of title and ownership of Nyandarua/Njabini/656 were heard and determined by a court of competent jurisdiction in the earlier petition. The applicants, having had their day in court, could not reintroduce the same issues; their remedy was review or appeal.

p. 3

Legal principles established

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  • The High Court's supervisory jurisdiction under Article 165(6) applies only to subordinate courts, not to superior courts of concurrent jurisdiction
  • A litigant aggrieved by a decision of a superior court must pursue appeal or review and cannot re-litigate the matter through a fresh constitutional petition or other proceedings

Court orders

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  1. 1.The application (chamber summons dated 17th April, 2015 seeking leave to institute judicial review proceedings and stay of execution) is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165(6)
  • Constitution of Kenya, 2010Article 40
  • Law Reform ActSections 8 and 9

Cases cited (6)

  • Peter Nganga Muiruri vs. Credit Bank Kenya Limited (2008) eKLR
    (2008) eKLR
  • Peter Ng'ang'a Muiruri v Credit Bank Ltd and Anor, Court of Appeal Civil Appeal No. 203 of 2006
  • Civicon Ltd v. Kenya Revenue Authority & Another
    (2014) eKLR
  • Ventaglio International SA & Another v. Registrar of Companies and Another, Nairobi HC Constitutional Petition No. 410 of 2012
  • Beta Healthcare International Ltd. v Commissioner of Customs, and 2 Ors., Nairobi HC Petition No. 125 of 2010
  • Vincent Nyingi Nderitu v. Hon. Attorney General & Others, Nyeri High Court Constitutional Petition No. 4 of 2012
Jurisdiction invoked
Article 165(6) of the Constitution of Kenya, 2010

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, "Joseph Nderu Wangece & 8 others v Vincent Nyigi Nderitu & 3 others [2017] KEELC 3608 (KLR)", Case Analysis (2017). Judicial Review Application (Chamber Summons dated 17th April, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3608/eng@2017-01-24

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