Republic v E. Muiru & 4 others Exparte Makueni Sand Conservation and Utilization Authority & another; Alex Mawai Mutuku & 15 others (interested parties) [2019] KEELC 1785 (KLR)
The bottom line
#Makueni county government and its sand authority lost their bid to quash injunctions because the Government Proceedings Act protects only the National Government, not counties.
What this practically means
#Executive summary
#Key legal issues
#Whether an order of injunction can issue against the Exparte Applicants under the Government Proceedings Act
No protection under the Government Proceedings Act applies to them; the Act applies only to the National Government. The magistrates therefore had jurisdiction to issue the injunctions.
The court agreed with Obaga J and Onguto J in the James Muigai Thungu and George Albert Ambuga decisions that County Governments are body corporates with perpetual succession, distinct from the National Government. Had the legislature intended to extend Cap 40 to County Governments, it would have amended the Act expressly. The Makueni Sand Authority, though a county instrumentality, is likewise not the National Government.
Whether the Exparte Applicants were entitled to the judicial review orders of certiorari and prohibition
The application was unmerited and was dismissed. Where an injunction is issued against a party, the remedy is to apply to set it aside or to appeal, not judicial review.
Having found the magistrates had jurisdiction to issue the injunctions, the court held that the judicial review orders could not issue. Allowing the application would subvert judicial authority; the aggrieved party's proper avenues were setting aside or appeal.
Legal principles established
#- The Government Proceedings Act (Cap 40) applies only to the National Government and does not extend to County Governments or county-created bodies, absent express legislative amendment
- County Governments, being body corporates, enjoy no immunity from injunctions under the Government Proceedings Act unless the Act is expressly amended to include them
Court orders
#- 1.The Notice of Motion application dated 13th March, 2018 was dismissed
- 2.Costs awarded to the Respondents and the 1st to the 15th Interested Parties
- Jurisdiction invoked
- Order 53(3) of the Civil Procedure Rules, 2010 and Sections 8 & 9 of the Law Reform Act (Cap 26); Articles 1, 6, 10, 47, 159, 160, 176, 183, 185, 186 & 189 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v E. Muiru & 4 others Exparte Makueni Sand Conservation and Utilization Authority & another; Alex Mawai Mutuku & 15 others (interested parties) [2019] KEELC 1785 (KLR)", Case Analysis (2019). Judicial Review No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1785/eng@2019-09-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.