Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutJudicial Review Application (Notice of Motion dated 7th March, 2012)· [2018] KEELC 263 (KLR)

Michael Kiangi v Makindu Land Disputes Tribunal & another [2018] KEELC 263 (KLR)

High Court of Kenya (Environment and Land Court)
15 November 2018
1,247 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court struck out a judicial review case because the applicant waited too long and asked for the wrong remedy against a decision already made.

What this practically means

#

Executive summary

#
The Ex-parte Applicant sought an order of prohibition under Order 53 rules 3 and 4 of the Civil Procedure Rules to prevent the Respondents and the interested party from enforcing the decision of the Makindu Land Disputes Tribunal dated 21st September 2010 in Tribunal Case No. 1 of 2010. The Applicant conceded he was out of time to quash the proceedings and argued that the Tribunal lacked jurisdiction because the land in question was market land rather than agricultural land under the Land Control Act, and because the dispute involved a contract of sale of land. The Respondent, supported by grounds of opposition, submitted that prohibition is a futuristic remedy that cannot lie against a decision already made, that the Tribunal's mandate was spent once it delivered its decision, and that the application was delayed and an abuse of process. The court agreed with the Respondent, holding that the Tribunal had already made its decision and that nothing remained to prohibit, whether or not the decision was made without jurisdiction. It noted that the Tribunal ceased to exist upon the repeal of the Land Disputes Tribunal Act chapter 303A by the Environment and Land Court Act of 2011. The court further found that the Applicant failed to explain the delay of over a year in filing the application. The application was struck out with costs to the Respondent.

Key legal issues

#
01

Whether prohibition can issue against a decision already made

Holding

No; prohibition looks to the future and cannot quash or stop a decision already rendered, even one made without jurisdiction

Reasoning

The court accepted the Respondent's submission, quoting the Court of Appeal's restatement of the law in Kenya National Examinations Council v Republic Ex-parte GG Njoroge, that prohibition is futuristic and cannot correct past acts. Since the Tribunal's decision was made on 21st September 2010, there was nothing left for the court to prohibit. The proper challenge would have been by way of quashing within time.

p. 2
02

Whether delay defeats the discretionary judicial review remedies

Holding

Yes; the Applicant's unexplained delay of over a year in moving the court after the decision was made disentitled him to the orders sought

Reasoning

The court noted the decision complained of was made on 21st September 2010 while the application was filed on 7th March 2012, and that the Applicant offered no explanation for the delay. Judicial review remedies being discretionary, the Applicant's conduct was a bar to relief.

p. 2
03

Whether the application was an abuse of the process of the court

Holding

Yes; seeking prohibition against a private citizen's enforcement of a spent tribunal decision was misconceived, and the Tribunal itself had ceased to exist upon repeal of the Land Disputes Tribunal Act

Reasoning

The court agreed with the Respondent that the application lacked merit and was an abuse of process. The Tribunal's mandate was spent once its decision was made, and any enforcement through the magistrates' court under section 7 of the Act was uncertain. The Tribunal itself ceased to exist upon repeal of the Act by the Environment and Land Court Act of 2011, leaving nothing to prohibit.

p. 2

Legal principles established

#
  • Prohibition is a prospective remedy that cannot issue against a decision already made, whether or not that decision was made in excess or lack of jurisdiction
  • Unexplained delay disentitles a party to discretionary judicial review remedies

Court orders

#
  1. 1.The Ex-parte application is struck out
  2. 2.Costs to the Respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 53 rules 3 and 4
  • Land Disputes Tribunal Act (now repealed)section 7(1)
  • Land Disputes Tribunal Act (now repealed)section 2
  • Land Disputes Tribunal Act (now repealed)section 7
  • Land Control Act Chapter 302 of Kenyasection 2
  • Land Dispute Tribunal Act chapter 303A of the Laws of Kenya(repealed by the Environment and Land Court Act, 2011)
  • Environment and Land Court Act of 2011

Cases cited (1)

  • Kenya National Examination Counsel Vs Republic Ex-parte G.G.Njoroge
    Civil Appeal No. 266 of 1996
Jurisdiction invoked
Order 53 rules 3 and 4 of the Civil Procedure Rules (judicial review jurisdiction of the High Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Michael Kiangi v Makindu Land Disputes Tribunal & another [2018] KEELC 263 (KLR)", Case Analysis (2018). Judicial Review Application (Notice of Motion dated 7th March, 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/263/eng@2018-11-15

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