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ELCDismissedEnvironment and Land Judicial Review Case E017 of 2021· [2022] KEELC 14502 (KLR)

Gituma & another v Kadhi Courts Nairobi; Farhan (Interested Party)

Environment and Land Court of Kenya
27 October 2022
1,311 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicants, Mohamed Gituma and Zeitun Hussein, moved the Environment and Land Court by notice of motion dated February 7, 2022 seeking orders of certiorari to quash a Kadhi's Court order of July 14, 2021 and a decree of July 28, 2021, and an order of prohibition restraining the interested party, Hassan Ali Saleh Farhan, from disturbing, trespassing on or encroaching on the suit property. The interested party opposed, contending that the applicants had not shown they were legal representatives of the estate of Mohamed Gituma, that no prejudice was demonstrated, and that the application failed to meet the threshold for judicial review and was an abuse of process. The respondent did not participate. Wabwoto J identified the principal issue as whether the applicants had made out a case for the judicial review orders. The court held that prerogative orders can only be procured in the name of the Republic; although leave may be sought by the subject, the substantive motion must be filed in the Republic's name with the subject as ex-parte applicant. The applicants had filed in their own names and the Republic was not impleaded, rendering the motion fatally incompetent - a defect going to the root of the proceedings rather than a curable technicality. On jurisdiction, the court held the Kadhi's Court, created under article 170 of the Constitution and governed by the Kadhi's Courts Act and the Civil Procedure Act, had power to grant the impugned orders. The applicants also failed to demonstrate any breach of natural justice, irrationality, bad faith or error of law by the Kadhi, and did not attach the Kadhi's Court proceedings. The motion was dismissed with costs to the interested party.

Key legal issues

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01

Competence of judicial review proceedings filed in the name of the subject rather than the Republic

Holding

The motion was fatally incompetent because the Republic was neither the applicant nor impleaded

Reasoning

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.

p. 2
02

Jurisdiction of the Kadhi's Court to grant the impugned orders

Holding

The Kadhi's Court had jurisdiction; the court rejected the applicants' challenge

Reasoning

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.

p. 3
03

Alleged breach of rules of natural justice by the Kadhi

Holding

Not established; the applicants did not demonstrate any breach

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The notice of motion dated February 7, 2022 is dismissed
  2. 2.Costs of the application awarded to the interested party

Authorities

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Legislation

  • Constitution of KenyaArticle 170, 170(5), 169(1)(b), 169(2)
  • Kadhi's Courts ActCap 11, section 8
  • Civil Procedure ActCap 21, section 63
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

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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, "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.