Nuh Abdille Hassan v Principal Magistrate’s Court at Milimani & another; Halima Mahmood Ali (Interested Party) [2021] KEELC 1764 (KLR)
The bottom line
#The Environment and Land Court refused to block an eviction, ruling that challenges to a magistrate's decision must go through appeal, not judicial review.
What this practically means
#Executive summary
#Key legal issues
#Whether a lower court's ruling striking out a suit and setting aside its own orders is subject to judicial review
It is not; the decision was judicial, not administrative, and the remedy is appeal.
The 1st respondent acted as a judicial body in making the impugned ruling, exercising judicial functions conferred by law. While the High Court has supervisory jurisdiction over subordinate courts, that power is not exercised in the same way as judicial review of administrative action under the Fair Administrative Action Act. Grounds cited by the applicant are grounds of appeal, and an appeal lay to this court under the Magistrate's Courts Act and the Environment and Land Court Act.
Exhaustion of alternative remedies
The applicant was required to appeal or seek a stay rather than come by way of judicial review.
Section 9(2) of the Fair Administrative Action Act and established doctrine require exhaustion of statutory remedies. The applicant had a right of appeal to this court, a right to seek stay of execution upon lodging an appeal, and an option to seek relief in the pending ELC suit over the same subject matter. Following Karume and Muthinja Kabiru, where a clear procedure for redress exists it must be strictly followed; courts are fora of last resort.
Whether the lower court, having found lack of pecuniary jurisdiction, could strike out the suit and discharge its earlier orders
Yes; striking out the suit automatically discharged the orders made therein, and restoration of the interested party merely restored the status quo.
Once a court finds it has no jurisdiction it may terminate proceedings and discharge orders made under the mistaken belief it had jurisdiction. The applicant could not retain the benefit of eviction orders that had been discharged. The restoration order simply returned the parties to the position before the 13th February 2018 orders, consistent with equitable principles against benefiting from unlawful acts.
Whether the applicant was denied a fair hearing before the impugned ruling
No; the parties were given opportunity to present their cases and no oral or written submissions were requested.
An opportunity to be heard need not be oral or by written submissions. The parties filed pleadings and responses and left the matter to the lower court for directions and orders. There was no indication any party requested to make further submissions. The court considered both parties' cases before delivering the ruling.
Legal principles established
#- A decision of a lower court made in exercise of its judicial function is not amenable to judicial review as an administrative action under the Fair Administrative Action Act, 2015.
- Where alternative remedies such as appeal exist, a court is barred from entertaining judicial review unless those remedies are exhausted.
- A court which finds it lacks jurisdiction has power to strike out the suit and discharge all orders made in the matter, restoring the status quo.
- The test for leave for judicial review is whether there is an arguable case without examining the matter in depth.
Court orders
#- 1.The Chamber Summons application dated 6th July, 2021 is dismissed
- 2.Costs of the application to the interested party
- Jurisdiction invoked
- Supervisory and judicial review jurisdiction of the High Court/Environment and Land Court under Order 53 of the Civil Procedure Rules and the Fair Administrative Action Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nuh Abdille Hassan v Principal Magistrate’s Court at Milimani & another; Halima Mahmood Ali (Interested Party) [2021] KEELC 1764 (KLR)", Case Analysis (2021). Chamber Summons application dated 6th July, 2021 (arising from Milimani CMCC No. 800 of 2018 and ELC No. 775 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1764/eng@2021-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.