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ELCDismissedJudicial Review Motion dated 14th September, 2018· [2019] KEELC 1415 (KLR)

Republic v Deputy County Commissioner, Lower Yatta Sub-County & another Exparte Matheka Sini [2019] KEELC 1415 (KLR)

High Court of Kenya
4 October 2019
OAO.A. Angote
1,114 words in judgment
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The bottom line

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The High Court dismissed a landowner's judicial review bid because he asked for the wrong orders; the correct remedy was certiorari.

What this practically means

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Executive summary

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The Ex-parte Applicant sought judicial review orders by Notice of Motion dated 14th September, 2018, namely mandamus compelling the 1st Respondent to review his decision of 21st February, 2017 awarding Plot No. 501 Ndunguni to the 2nd Respondent, and prohibition restraining the Respondents from evicting him or interfering with his possession. The Applicant claimed to have inherited and occupied the suit property since 1961, and argued that the 1st Respondent's decision merely adopted a 1972 decision in Kitui Senior Resident Magistrate's Civil Case L. 76/72 which was time-barred under the Limitation of Actions Act, and that due process was not followed. The 2nd Respondent, asserting registered ownership of Yatta/Ndunguni/501 as his deceased father's land, contended that ownership had been decided in 1972 and that the application was an abuse of process. Angote J held that the three prerogative orders serve distinct purposes: certiorari alone can remove and quash a decision of an inferior tribunal; mandamus commands performance of a neglected public duty; prohibition stops proceedings in excess of jurisdiction but does not correct a wrong decision on the merits. Since the 1st Respondent was under no legal duty to review his own completed decision, mandamus could not issue; nor could prohibition lie against a decision already made. The proper remedy, certiorari, had not been sought. The application was found incompetent and dismissed with costs on 4th October, 2019 in Machakos.

Key legal issues

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01

Whether mandamus could compel the 1st Respondent to review his own decision

Holding

No - the 1st Respondent was under no legal obligation to review his decision, so mandamus could not issue

Reasoning

The court distinguished the three prerogative orders. Mandamus commands an inferior body to perform a public duty it has failed or neglected to perform. Having already rendered its decision of 21st February 2017, the 1st Respondent owed no duty to review it, and the court could not compel such a review.

p. 2
02

Whether prohibition could protect the Applicant's possession of the suit property

Holding

No - prohibition lies to stop ongoing proceedings in excess of jurisdiction, not to undo a completed decision

Reasoning

Relying on Kenya National Examinations Council v Republic ex-parte Geoffrey Gathenji Njoroge, prohibition forbids an inferior tribunal from continuing proceedings in excess of jurisdiction; it does not correct a wrong decision on the merits. Since the decision was already made, prohibition was unavailable; certiorari was the only proper remedy.

p. 2
03

Competence of the judicial review application

Holding

The application was incompetent because the Applicant sought the wrong prerogative orders and did not pray for certiorari

Reasoning

Although the Applicant effectively sought to quash the 1st Respondent's decision, he never prayed for an order of certiorari, which is the only order that could remove and quash the decision of an inferior tribunal. Having chosen remedies that could not lie, the motion failed in its entirety.

p. 2

Legal principles established

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  • Certiorari is the only prerogative order capable of removing and quashing a decision of an inferior tribunal
  • Mandamus lies only to compel performance of a public duty that has been failed or neglected
  • Prohibition cannot issue in respect of a decision that has already been made

Court orders

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  1. 1.The Application dated 14th September, 2018 is dismissed with costs

Authorities

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Legislation

  • Limitation of Actions Act

Cases cited (1)

  • Kenya National Examinations Council Vs. Republic, Ex-parte Geoffrey Gathenji Njoroge & Others
    Civil Appeal No. 266 of 1966
Jurisdiction invoked
High Court's supervisory judicial review jurisdiction (prerogative orders of certiorari, prohibition and mandamus)

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 Deputy County Commissioner, Lower Yatta Sub-County & another Exparte Matheka Sini [2019] KEELC 1415 (KLR)", Case Analysis (2019). Judicial Review Motion dated 14th September, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1415/eng@2019-10-04

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