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ELCDismissedELC. Miscellenous Civil Application No. 317 of 2007 (filed as 2007; Notice of Motion dated 22nd November, 2015)· [2018] KEELC 3030 (KLR)

Republic v District Commissioner Mwingi District & 7 others Ex-Parte Justus Muthini Kwake [2018] KEELC 3030 (KLR)

Environment and Land Court
25 May 2018
980 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Ex-parte Applicant, Justus Muthini Kwake, moved the Environment and Land Court at Machakos by Notice of Motion seeking an order of prohibition to stop the Respondents from acting upon, enforcing or altering the adjudication register in conformity with the Minister's decision of 25th October, 2004 in Mwingi District Land Adjudication Appeal No. 103 of 1997 concerning parcel No. 1002 in Mbondoni Adjudication Section. The Applicant's case was that during the 1983 adjudication the Land Adjudication Committee awarded him the suit land, but the Land Arbitration Board overturned that decision in 1989, and his appeal to the Minister was heard and determined without his being served or given an opportunity to be heard, contrary to the rules of natural justice. The Interested Party (the 7th Respondent) opposed, contending the application was filed out of the statutory period, that he had already been issued a title deed, that the appeal was properly heard, and that no prayer for setting aside the Minister's decision had been made. The court, per O.A. Angote J, applied the decision in Kenya National Examinations Council v R, Ex-parte Geoffrey Gathenji Njoroge, holding that prohibition is a prospective remedy that cannot quash a decision already made. Since the Minister's decision had already been made, prohibition would be ineffectual; the proper remedies were certiorari or a declaratory order. The court found the application incompetent and dismissed it with costs.

Key legal issues

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01

Whether an order of prohibition is an efficacious remedy against a decision already made

Holding

No - prohibition is prospective only and cannot issue against a completed decision; certiorari or a declaratory order was the appropriate remedy

Reasoning

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.

p. 2
02

Whether the Application was competent given that it sought only prohibition

Holding

The application was incompetent because the remedy sought was ineffectual

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Ex-parte Applicant's Application dated 22nd November, 2005 (Notice of Motion dated 22nd November, 2015) is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Land Adjudication ActSection 29

Cases cited (1)

  • Kenya National Examinations Council Versus R, Ex-parte Geoffrey Gathenji Njoroge & Others
    (1997) eKLR
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

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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 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.