Republic v District Commissioner Mwingi District & 7 others Ex-Parte Justus Muthini Kwake [2018] KEELC 3030 (KLR)
The bottom line
#A landowner lost his case because he asked the court to stop a decision that had already been made, instead of asking to overturn it.
What this practically means
#Executive summary
#Key legal issues
#Whether an order of prohibition is an efficacious remedy against a decision already made
No - prohibition is prospective only and cannot issue against a completed decision; certiorari or a declaratory order was the appropriate remedy
The court distinguished between quashing orders (certiorari), which look to the past and address ultra vires decisions, and prohibitory orders, which look to the future. Since the Minister's decision in Appeal No. 103 of 1997 was delivered on 25th October, 2004 and had already been made, an order of prohibition would not remove or affect that decision. Courts do not issue orders in vain, so the application founded solely on prohibition was incompetent. The Applicant should have sought certiorari to quash the decision or a declaratory order.
Whether the Application was competent given that it sought only prohibition
The application was incompetent because the remedy sought was ineffectual
The Applicant's claim was that he was not heard before the Minister determined the appeal. However, he sought only a prohibitory order and did not state what would happen to the Minister's decision if prohibition were granted. Because the decision had already been made and acted upon, prohibition would serve no purpose. The court therefore found the application incompetent and dismissed it, without determining the substantive natural justice complaint, which would have required a quashing remedy.
Legal principles established
#- Prohibition is a prospective remedy and cannot quash or invalidate a decision that has already been made; where a decision has been made, the appropriate remedies are certiorari or a declaration
Court orders
#- 1.The Ex-parte Applicant's Application dated 22nd November, 2005 (Notice of Motion dated 22nd November, 2015) is dismissed
- 2.Costs of the application awarded to the Respondents
- Jurisdiction invoked
- Judicial review jurisdiction over land adjudication matters; order of prohibition sought in the matter of Appeal No. 103 of 1997 to the Minister under Section 29 of the Land Adjudication Act (Cap 284)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v District Commissioner Mwingi District & 7 others Ex-Parte Justus Muthini Kwake [2018] KEELC 3030 (KLR)", Case Analysis (2018). ELC. Miscellenous Civil Application No. 317 of 2007 (filed as 2007; Notice of Motion dated 22nd November, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3030/eng@2018-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.