Republic v County Government of Laikipia Exparte Joseph Mwangi Maina [2019] KEELRC 1020 (KLR)
The bottom line
#Once a Kenyan court quashes a decision with certiorari, the losing party's only remedy is an appeal—waiting to apply to set aside the orders costs you the case and the legal bills.
What this practically means
#Executive summary
#Key legal issues
#Functus officio
A court that has pronounced judgment in judicial review proceedings is not functus officio so as to be incapable of hearing an application to set aside or for review.
The ex parte Applicant argued that having pronounced itself the court was functus officio and lacked jurisdiction over the motion. The court rejected this, holding that a court may still entertain a review application or an application to set aside its own orders. The objection was therefore misplaced and misguided.
Merits of the application to set aside
An application to set aside ex parte proceedings fails where the court's orders of certiorari have already quashed the decision, and the applicant's recourse lies in appeal rather than setting aside.
Although the court found it was not functus officio, it held the motion bound to fail on the law. Orders of certiorari had quashed the Respondent/Applicant's decision; the only recourse open was an appeal to the Court of Appeal under Section 8 of the Law Reform Act, and no appeal was filed. The application was therefore dismissed with costs.
Quality of cited authorities
Authorities cited in submissions must be produced and expounded; a case not attached or not corresponding to the decision relied on carries no weight.
The court noted that the Hassan Ali Joho Supreme Court Petition cited to support the Mukisa Biscuit preliminary objection position was neither attached to the submissions nor the list of authorities; what was attached was the Court of Appeal decision of the same name, which had no bearing on the arguments advanced.
Legal principles established
#- A judicial review court that has pronounced judgment is not functus officio in respect of applications to set aside or for review, but once certiorari has quashed a decision, the only recourse for the affected party is an appeal, not an application to set aside.
Court orders
#- 1.The Respondent/Applicant's notice of motion application dated 13th May 2019 is dismissed
- 2.Costs of the application awarded to the ex parte Applicant/Respondent
- Jurisdiction invoked
- Judicial review jurisdiction under the Law Reform Act (Cap 26) - the court refers to Section 8(3) and (5) of the Law Reform Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Government of Laikipia Exparte Joseph Mwangi Maina [2019] KEELRC 1020 (KLR)", Case Analysis (2019). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1020/eng@2019-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.