Republic v E. Muiru Senior Resident Magistrate Kilungu & 2 others; Robert Kilonzo Mwania & 2 others(Interested Parties) Ex-Parte Makueni Sand Conservation and Utilization Authority & another [2019] KEELC 655 (KLR)
The bottom line
#Kenya's High Court confirmed that county governments and their agencies can be sued and restrained in ordinary courts like any other party.
What this practically means
#Executive summary
#Key legal issues
#Whether the Government Proceedings Act (Cap 40), particularly Sections 13A and 16, applies to County Governments and county-created bodies
It does not; County Governments are distinct bodies corporate with power to sue and be sued, and the Act has not been amended to extend to them, so injunctions could lawfully issue against the Ex-parte Applicants.
The court agreed with Obaga J and Onguto J in the Thungu and Ambuga cases that the Government Proceedings Act protects only the National Government. County Governments are body corporates under Section 6 of the County Governments Act, 2012, and had the legislature intended to extend the Act to them it would have expressly done so. Consequently the 1st Ex-parte Applicant, a body corporate created under the Makueni Sand Conservation and Utilization Act, 2015, enjoys no protection under Sections 13A or 16 of the Act.
Whether judicial review orders of certiorari and prohibition should issue against the magistrates' injunction orders
No; the application failed because the magistrates had jurisdiction and the proper avenue was to set aside or appeal the orders, not to invoke judicial review.
The court held that once injunctions were issued against the Ex-parte Applicants, the remedies open to them were an application to set aside or an appeal. Granting certiorari and prohibition on these facts would amount to allowing the Applicants to usurp and subvert judicial authority, contrary to Articles 159 and 160 of the Constitution which insulate judicial officers exercising judicial authority derived from the people.
Legal principles established
#- The Government Proceedings Act (Cap 40) applies only to the National Government and does not extend to County Governments or their entities unless expressly amended to include them.
Court orders
#- 1.Dismissal of the Ex-parte Applicants' Notice of Motion dated 19th March 2018 with costs to the Respondents and the 1st to 2nd Interested Parties
- Jurisdiction invoked
- Order 53(3) of the Civil Procedure Rules, 2010 and Sections 8 & 9 of the Law Reform Act (judicial review of subordinate court decisions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v E. Muiru Senior Resident Magistrate Kilungu & 2 others; Robert Kilonzo Mwania & 2 others(Interested Parties) Ex-Parte Makueni Sand Conservation and Utilization Authority & another [2019] KEELC 655 (KLR)", Case Analysis (2019). Judicial Review No. 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/655/eng@2019-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.