Republic v Director of Survey & 2 others; John Sakaja (Interested Party) Ex-Parte Peter K. Wilson [2019] KEELC 3488 (KLR)
The bottom line
#The High Court in Kitale dismissed a landowner's bid for an injunction, confirming courts cannot grant injunctions in judicial review cases in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant an injunction in a concluded judicial review matter
The High Court lacks power to grant an injunction in judicial review proceedings; only certiorari, mandamus and prohibition are available under Section 8 of the Law Reform Act
The court applied the Court of Appeal's decision in Cortec Mining Kenya Limited, holding that judicial review remedies are confined to the three prerogative orders. Since the judicial review notice of motion was dismissed on 29/5/2017, there is no pending suit in which Order 40 Rule 2 injunctive relief could issue, and the intended appeal does not revive the jurisdiction.
Applicability of Order 40 Rule 2 Civil Procedure Rules
Order 40 Rule 2 applies only where there is a pending suit and a threat of breach of contract or injury during its pendency; it does not apply where the suit is finalised and an appeal is pending
The court noted that the provisions contemplate injunctive relief only during the pendency of a suit whose substantive relief is restraint of breach or injury. With the judicial review motion concluded, no suit exists before the court, rendering the provisions inapplicable.
Whether Article 40(3)(b)(ii) of the Constitution applies
The article on deprivation of property does not apply because no compulsory acquisition is evinced; the dispute is over whether the road legally existed and the legality of the demarcation decision
Counsel for the applicant connected the application to Article 40(3)(b)(ii), but the court found no state intention of compulsory acquisition. The issues were existence of the road since the 1950s and the legality of the decision to demarcate it to higher dimensions.
Legal principles established
#- An injunction is not available in judicial review proceedings in the High Court, as it falls outside the reliefs authorised by Section 8 of the Law Reform Act
Court orders
#- 1.Dismissal of the Notice of Motion dated 5/2/2019 with costs
- Jurisdiction invoked
- Order 40 Rule 2 of the Civil Procedure Rules; sections 1B and 3A Civil Procedure Act; Law Reform Act s.8 (judicial review); Article 40(3)(b)(ii) Constitution invoked by applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Director of Survey & 2 others; John Sakaja (Interested Party) Ex-Parte Peter K. Wilson [2019] KEELC 3488 (KLR)", Case Analysis (2019). Judicial Review (Notice of Motion dated 5/2/2019) arising from Judicial Review Notice of Motion; Eldoret COA Civil Appeal No. 46 of 2017 pending. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3488/eng@2019-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.