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ELCDismissedELC Case No. 114 of 2010· [2018] KEELC 4677 (KLR)

Republic v Municipal Council of Mombasa & 4 others [2018] KEELC 4677 (KLR)

Environment and Land Court
15 January 2018
AOA. Omollo
1,642 words in judgment
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The bottom line

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The Environment and Land Court in Mombasa refused to quash a rates judgment by judicial review, ruling that disputes over service of summons and auction execution belong before the trial court or on appeal.

What this practically means

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Executive summary

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The ex parte applicant moved the Environment and Land Court at Mombasa by notice of motion dated 18th October 2010 seeking an order of certiorari to quash the judgment and proceedings of the Senior Resident Magistrate's Court in Mombasa CMCC No. 3631 of 2009 (Municipal Council of Mombasa v Haron Silvano Andima), delivered on 12th April 2010 in a rates recovery suit over title number 496/1/MN, together with consequential execution actions under which the property was sold by public auction on 30th April 2010 and purchased by the interested party, who was subsequently registered as owner. The application was opposed by a preliminary objection dated 1st April 2011 and a replying affidavit sworn on 23rd June 2016. Applying the Emfil Limited/Pastoli test requiring demonstration of illegality, irrationality or procedural impropriety, the court held that complaints about the mode of service of summons, the prohibitory orders, the terms and conditions of sale and the notification of sale were attacks on the merits of the magistrate's decision and the execution process. Section 17(4) and 17(7) and section 25 of the Rating Act, read with the Civil Procedure Act and Rules, sanctioned the service and execution procedures used. The decree was final, unappealed and never set aside; the auctioneer acted as an agent of the court. The proper remedies were an application to the trial magistrate to set aside the ex parte proceedings, review, or appeal. The court therefore refused certiorari and dismissed the motion with costs to the 1st and 3rd Respondents and the interested party.

Key legal issues

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01

Whether judicial review was the proper avenue to challenge service of summons and execution of a decree in a rates recovery suit

Holding

No - the proper forum was the trial magistrate or an appeal; judicial review was refused

Reasoning

The court held that in civil cases litigants, not magistrates, effect service under the applicable rules, and a party disputing service must adduce facts before the trial magistrate who may set aside ex parte proceedings. Questions on the mode of service, prohibitory orders, terms of sale and notification of sale go to the merit of the magistrate's decision and execution process, for which the applicant had alternative remedies of review, setting aside or appeal, which were not exhausted.

p. 2
02

Whether the execution proceedings were lawful under the Rating Act and Civil Procedure Act/Rules

Holding

Yes - the process followed by the 1st Respondent was provided in law and the auctioneer acted as an agent of the court under a decree still in force

Reasoning

Section 25 of the Rating Act confers jurisdiction on magistrates to determine rates recovery suits, and section 17(7) invokes the Civil Procedure Act for execution of decrees. The decree of 12th April 2010 was final, never appealed, reviewed or set aside. The 3rd Respondent acted as an agent of the court and the 1st Respondent made no independent decision, so their actions could not be separated from the decree.

p. 2

Legal principles established

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  • An applicant for judicial review must demonstrate that the decision complained of is tainted with illegality, irrationality or procedural impropriety
  • Disputes over the mode of service of summons and the propriety of execution of a decree are matters for the trial court or appeal, not judicial review proceedings
  • A judicial review court cannot be asked to exercise the powers of the trial magistrate, such as setting aside ex parte proceedings

Court orders

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  1. 1.Refusal of the order of certiorari sought to quash the proceedings and judgment of the 2nd Respondent delivered on 12th April 2010 in MSA CMCC 3631 of 2009
  2. 2.Dismissal of the notice of motion dated 18th October 2010 with costs to the 1st & 3rd Respondents and the Interested Party

Authorities

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Legislation

  • Civil Procedure RulesOrder 5, rule 14
  • Rating Actsection 17(4)
  • Rating Actsection 17(7)
  • Rating Actsection 25
  • Civil Procedure Actgenerally (applied to execution via section 17(7) Rating Act)

Cases cited (5)

  • Emfil Limited vs Registrar of Titles & 2 others
    (2014) eKLR
  • Pastoli vs Kabale District Local Government Council & others
    (2008) 2 E.A 300
  • Margaret Nyaarmai Theuri vs A.G & 4 others
    (2014) eKLR
  • Polycarp Kanyugo vs County Government of Kirinyaga
    (2014) eKLR
  • Raytheon Aircraft Corporation & Another vs Air Al-faray limited
    (2005) eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court/ELC under Order 53 of the Civil Procedure Rules (motion for certiorari)

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 Municipal Council of Mombasa & 4 others [2018] KEELC 4677 (KLR)", Case Analysis (2018). ELC Case No. 114 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4677/eng@2018-01-15

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