Republic v Senior Principal Magistrate Kikuyu Law Courts; Mary Wambui Wanyoike (Interested Party); Proland Holdings Limited (Applicant) [2021] KEELC 756 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a company's bid to stop land transfer proceedings, ruling you cannot get injunctions before judicial review leave is granted.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC judicial review court can entertain an injunction application filed without prior leave under Order 53 Rule 1
It cannot; a leave application does not constitute a substantive suit capable of anchoring interim injunctive relief, so the Notice of Motion dated 17/2/2021 was struck out
Order 53 Rule 1 requires leave before any application for mandamus, prohibition or certiorari. At the leave stage there is no substantive judicial review suit on record. Consequently interim orders in the nature of injunctions over the suit properties, and prayers to cancel titles, were incompetent and were disposed of by the Preliminary Objection, which raised a pure point of law under the Mukisa Biscuit test.
Whether the Chamber Summons dated 22/12/2020 seeking leave for certiorari and prohibition was overtaken by events
Yes; the typographical error had been corrected pursuant to this Court's directions of 28/12/2020 and the Magistrate had been transferred, rendering certiorari and prohibition otiose
The Court found that Lady Justice Gacheru's directions of 23/12/2020 and orders of 28/12/2020 resulted in the trial court rectifying the typographical error on 31/12/2020, mooting the impugned directions of 8/12/2020. The uncontroverted evidence that Hon L. N. Musyoka had been transferred removed the substratum of the prohibition prayer. The Applicant therefore failed to demonstrate an arguable or prima facie case warranting leave.
Whether the ELC has jurisdiction to grant prerogative orders
Yes; the Court exercises the same prerogative powers as the High Court in England under Section 8 of the Law Reform Act, and may grant reliefs including prerogative orders and injunctions under Section 13(7) of the ELC Act
The Court traced the power to grant mandamus, prohibition and certiorari to Section 8 of the Law Reform Act and Article 23 of the Constitution, holding that the ELC, created under Article 162(2)(b), is not bereft of such jurisdiction. However, jurisdiction in the abstract did not save the Applicant's defective applications.
Legal principles established
#- A preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if facts must be ascertained or judicial discretion exercised.
- Leave is a prerequisite to a substantive judicial review application and no interim orders such as injunctions may be anchored on a leave application before a substantive suit exists.
- The Environment and Land Court, like the High Court, has power to grant prerogative orders and interim preservation orders including injunctions under Section 13(7) of the ELC Act.
- The 2010 Constitution expanded the scope of judicial review remedies under Articles 23 and 47.
Court orders
#- 1.The Preliminary Objection dated the 4/5/2021 partially succeeds and is upheld
- 2.The application dated the 17/2/2021 is struck out
- 3.The Chamber Summons dated the 22/12/2020 is dismissed
- 4.Costs awarded in favour of the Interested Party
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; Article 23 and 47 of the Constitution; Section 8 of the Law Reform Act; Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Senior Principal Magistrate Kikuyu Law Courts; Mary Wambui Wanyoike (Interested Party); Proland Holdings Limited (Applicant) [2021] KEELC 756 (KLR)", Case Analysis (2021). Judicial Review Application (Chamber Summons dated 22/12/2020 and Notice of Motion dated 17/2/2021), Environment and Land Court, Thika. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/756/eng@2021-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.