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ELCDismissedJudicial Review (Chamber Summons dated 5/01/2024)· [2024] KEELC 1192 (KLR)

Shish Vendors & 3 others v Officer Commanding Police Station – Kwale & another; Postal Corporation of Ken & another (Interested Parties) (Environment & Land Miscellaneous Case E001 of 2024) [2024] KEELC 1192 (KLR)

High Court of Kenya
6 March 2024
ADA.E. Dena
2,468 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a judicial review challenge to police enforcement of a court order, ruling the tenants should have asked the magistrate's court to interpret that order instead.

What this practically means

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Executive summary

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The Ex-parte Applicants, led by Suleiman Jobez Osman as Managing Director, leased LR No. 5007/47 Kwale from the Postal Corporation of Kenya and developed a commercial building on it, subletting to tenants including Shish Vendors. In pending proceedings being Kwale CMCC Land Case No. 77 of 2019 between Shish Vendors Limited and Postal Corporation, an interim order issued on 14th September 2023 was enforced on 15/09/23 by the OCS Kwale, who allegedly barricaded the premises and welded doors shut. The Applicants moved the High Court by Chamber Summons dated 5/01/2024 under Order 53 Rules 1, 2 and 3 of the Civil Procedure Rules seeking leave to apply for certiorari and prohibition against the OCS's barricading, and that leave operate as a stay. The Attorney General opposed on grounds that the application was a disguised appeal against the magistrate's order, sub judice, and an abuse of process; the OCS deponed he acted in compliance with a lawful court order. Justice A.E. Dena applied the arguability test for leave and held that the real dispute was the interpretation and implementation of the order of 14/9/23, which the Applicants did not contest; the proper remedy was to seek interpretation from the Chief Magistrate's Court, whose inter partes ruling was pending. Judicial review, being confined to the decision-making process, did not lie. Leave was refused and the court found it unnecessary to consider whether leave should operate as a stay. The Chamber Summons was dismissed with costs to the 1st and 2nd Respondents.

Key legal issues

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01

Whether the barricading of premises pursuant to enforcement of a magistrate's court order is amenable to judicial review

Holding

No. The dispute is one of interpretation of the order of 14/9/23, and the ultra vires question is best resolved by the court that issued the order.

Reasoning

The court held that judicial review concerns the decision-making process, not merits. The only 'decision' available was the order of 14/9/2023, which the Applicants expressly did not contest; their complaint was its manner of implementation. The Applicants should have returned to the Chief Magistrate's Court to seek interpretation of the order, especially as an inter partes ruling was pending.

p. 5
02

Whether the Applicants established an arguable case for leave

Holding

No. The leave stage requires only an arguable case on the material available, and the Applicants failed to demonstrate one.

Reasoning

Applying the Kondo test, the court found the essence of the complaint was the implementation of an order the Applicants accepted. Since the proper forum for that complaint was the subordinate court's interpretation jurisdiction, there was no arguable case meriting leave for certiorari or prohibition.

p. 6

Legal principles established

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  • Leave for judicial review may only be granted if, on the material available and without going into depth, the applicant has an arguable case for the relief sought
  • Disputes over implementation of a court order are matters of interpretation for that court, not judicial review; judicial review concerns the decision-making process

Court orders

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  1. 1.The Chamber Summons application dated 5/01/24 is dismissed with costs to the 1st and 2nd Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 1, 2 and 3
  • Civil Procedure Act
  • Fair Administrative Action Act

Cases cited (5)

  • Republic v Retirement Benefits Appeals Tribunal & 2 others; Alice Anyona Mumo & 168 others (Exparte)
    [2023] KEHC 766 (KLR)
  • Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others
    Mombasa HCMCA No. 384 of 1996
  • Samuel Muweru and others vs NLC & others
    (2020) eKLR
  • Suchein Investment Ltd vs Ministry of National Heritage and Culture
    Civil Appeal no. 46 of 2012
  • Speaker of National Assembly vs Nyanga Kerome
    19/1992 KCEA 42 KLR
Jurisdiction invoked
Order 53 Rules 1, 2 and 3 of the Civil Procedure Rules - supervisory jurisdiction for leave to apply for certiorari and prohibition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shish Vendors & 3 others v Officer Commanding Police Station – Kwale & another; Postal Corporation of Ken & another (Interested Parties) (Environment & Land Miscellaneous Case E001 of 2024) [2024] KEELC 1192 (KLR)", Case Analysis (2024). Judicial Review (Chamber Summons dated 5/01/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1192/eng@2024-03-06

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