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ELCDismissedPetition dated 31st May 2019· [2021] KEELC 4025 (KLR)

Abdi Abdullahi & another v Chief Magistrate Isiolo Law Courts & another [2021] KEELC 4025 (KLR)

Environment and Land Court
17 March 2021
LMLucy N. Mbugua
1,818 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a petition challenging a costs ruling, ruling that constitutional petitions cannot replace appeals when proper remedies already exist.

What this practically means

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Executive summary

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By a petition dated 31st May 2019, the petitioners sought declarations that they were subjected to unfair administrative action under Article 47 of the Constitution and section 4 of the Fair Administrative Action Act in respect of a bill of costs dated 9th February 2018 in Isiolo CMCC No. 19 of 2016, an order setting aside the certificate of costs dated 10th May 2018, a direction for a fresh hearing of the bill of costs before a magistrate other than S.M. Mungai, and costs. Their grievance was that the bill of costs was never served on them or their advocates, denying them a hearing before costs were awarded following the withdrawal of their suit. The case against the 1st respondent was withdrawn, leaving the 2nd respondent (an advocate). The 2nd respondent argued the petition was premature, misconceived and an abuse of process, the wrong parties had been sued, and the specific procedures under section 9(2) of the Law Reform Act and rule 11 of the Advocate Remuneration Order had not been exhausted. The court found that the identical issues had been raised and determined in the petitioners' application dated 29.6.2018, dismissed by the magistrate on 30.4.2019. Invoking the Communications Commission of Kenya threshold, Gabriel Mutava, and Kariuki v Dawa Pharmaceuticals, the court held that the Constitution should not be a thoroughfare for every common grievance and that the petitioners could not have a second bite of the cherry; their remedy was appeal or review. The petition was dismissed with costs to the 2nd respondent, interim stay orders discharged, and the Isiolo CMCC file severed and remitted to the Chief Magistrate's Court.

Key legal issues

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01

Whether the petition raised genuine constitutional questions

Holding

The petition did not meet the constitutional threshold; the issues had already been litigated and determined by the magistrate's court

Reasoning

The court noted that the issues raised in the petition (lack of notice of the bill of costs and the Magindi High Court jurisdiction decision) were the same ones raised and determined in the application dated 29.6.2018 that was dismissed by the magistrate on 30.4.2019. An aggrieved party's remedy was appeal, review, or enlargement of time, not a constitutional petition. Elevating the dispute to a constitutional platform was a second bite at the cherry.

p. 3
02

Whether the claim survived the withdrawal of the case against the 1st respondent

Holding

The claim against the remaining respondent was fatally weakened because the claim was primarily directed at the 1st respondent against whom the case was withdrawn

Reasoning

The court observed that the petitioners had withdrawn the case against the 1st respondent, yet the petitioners' claim was primarily directed at that respondent. This undermined the petition's viability.

Legal principles established

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  • A party invoking Article 22(1) must show the rights infringed and the basis of the grievance
  • The Constitution should not be used as a forum for every ordinary grievance that has a proper alternative remedy
  • A dispute cannot be elevated to constitutional status where it is plainly an abuse of the court's process

Court orders

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  1. 1.This suit is hereby dismissed with costs to the 2nd respondent
  2. 2.Any orders of stay of execution or of further proceedings relating to the Isiolo matter CMCC NO.19 OF 2016 are hereby discharged
  3. 3.The court file Isiolo CMCC NO. 19 OF 2016 is to be severed from this petition and to be remitted back to the Isiolo Chief Magistrates Court with immediate effect

Authorities

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Legislation

  • Constitution of KenyaArticle 22(1), Article 47, Article 50
  • Fair Administrative Action ActSections 2, 3 and 4
  • Law Reform ActSection 9(2)
  • Advocate Remuneration OrderRule 11
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (6)

  • Machira & Co. Advocates v Arthur K. Magugu & Another
    [2012] eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Annarita Karimi Njeru v. Republic
    (1979) KLR 154
  • Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another
    [2016] eKLR
  • Kariuki & Others Vs. Dawa Pharmaceuticals Company Limited & Others
    [2007] E.A. 235
  • Anne Wawuda & 3 others v Kenya Railways Corporation & another
    [2015] eKLR
Jurisdiction invoked
Article 22(1) and Article 47 of the Constitution of Kenya; Fair Administrative Action Act 2015

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, "Abdi Abdullahi & another v Chief Magistrate Isiolo Law Courts & another [2021] KEELC 4025 (KLR)", Case Analysis (2021). Petition dated 31st May 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4025/eng@2021-03-17

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