Michael Kiangi v Makindu Land Disputes Tribunal & another [2018] KEELC 263 (KLR)
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
#Key legal issues
#Whether prohibition can issue against a decision already made
No; prohibition looks to the future and cannot quash or stop a decision already rendered, even one made without jurisdiction
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.
Whether delay defeats the discretionary judicial review remedies
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
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.
Whether the application was an abuse of the process of the court
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
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.
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.The Ex-parte application is struck out
- 2.Costs to the Respondent
- 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.