Gituma & another v Kadhi Courts Nairobi; Farhan (Interested Party)
The bottom line
#A Kenyan court threw out a challenge to a Kadhi's Court ruling because the case was filed in the wrong name, not the Republic's.
What this practically means
#Executive summary
#Key legal issues
#Competence of judicial review proceedings filed in the name of the subject rather than the Republic
The motion was fatally incompetent because the Republic was neither the applicant nor impleaded
Prerogative orders of judicial review can only be procured in the name of the Republic. Leave may be sought by the subject, but once granted the substantive motion must be in the Republic's name with the subject as ex-parte applicant. Here the applicants filed in their own names and the Republic was not a party, invalidating the entire suit.
Jurisdiction of the Kadhi's Court to grant the impugned orders
The Kadhi's Court had jurisdiction; the court rejected the applicants' challenge
The Kadhi's Court is created under article 170 with jurisdiction over Muslim law on personal status, marriage, divorce or inheritance. Section 8 of the Kadhi's Courts Act permits recourse to Civil Procedure Act procedure, and section 63 of that Act grants all courts inherent powers to grant appropriate reliefs. The Kadhi's Court could therefore grant the orders.
Alleged breach of rules of natural justice by the Kadhi
Not established; the applicants did not demonstrate any breach
Applicants were required to show that the Kadhi breached natural justice or that the decision was irrational, made in bad faith, against public policy or contained errors of fact and law. They did not do so, and the Kadhi's Court proceedings were not attached or furnished to the court for scrutiny.
Legal principles established
#- Once leave is granted, the substantive judicial review application must be filed in the name of the Republic, with the subject as ex-parte applicant; failure to comply goes to the root of the proceedings and invalidates the suit
- Non-compliance with the strict rules governing judicial review proceedings is not a mere procedural technicality
Court orders
#- 1.The notice of motion dated February 7, 2022 is dismissed
- 2.Costs of the application awarded to the interested party
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court; impugned decision of the Kadhi's Court established under article 170 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gituma & another v Kadhi Courts Nairobi; Farhan (Interested Party)", Case Analysis (2022). Environment and Land Judicial Review Case E017 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14502/eng@2022-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.