Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in extract· [2019] KEELRC 1020 (KLR)

Republic v County Government of Laikipia Exparte Joseph Mwangi Maina [2019] KEELRC 1020 (KLR)

High Court of Kenya
23 July 2019
621 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

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

#
This is a ruling of the High Court at Nyeri (Nzioki wa Makau, J) delivered on 23rd July 2019 on the Respondent/Applicant's notice of motion dated 13th May 2019 seeking to set aside the orders and decree previously issued ex parte in judicial review proceedings, to have the proceedings heard de novo, and to be granted unconditional leave to defend. The Respondent/Applicant contended it was never served with suit papers and that the court retained discretion to set aside, citing Republic v Director of Survey & 2 Others ex parte Sayani Investments. The ex parte Applicant/Respondent opposed via a preliminary objection, arguing the motion was defective, that the Respondent's advocates lacked audience, and that the court was functus officio, relying on the Kalpana Rawal and Hassan Ali Joho authorities and Section 8(3) and (5) of the Law Reform Act. The court rejected the functus officio objection, holding that a court retains power to hear a review or setting-aside application. However, it dismissed the motion on the merits: certiorari had already quashed the Respondent/Applicant's decision, the only recourse was an appeal to the Court of Appeal, and none had been filed. The court also criticised the ex parte Applicant for citing authorities not produced or expounded, noting the attached Joho decision was the Court of Appeal version with no bearing on the arguments. The application was dismissed with costs to the ex parte Applicant.

Key legal issues

#
01

Functus officio

Holding

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.

Reasoning

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.

p. 2
02

Merits of the application to set aside

Holding

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.

Reasoning

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.

p. 2
03

Quality of cited authorities

Holding

Authorities cited in submissions must be produced and expounded; a case not attached or not corresponding to the decision relied on carries no weight.

Reasoning

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.

p. 2

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. 1.The Respondent/Applicant's notice of motion application dated 13th May 2019 is dismissed
  2. 2.Costs of the application awarded to the ex parte Applicant/Respondent

Authorities

#

Legislation

  • Law Reform ActSection 8(3) and (5)

Cases cited (5)

  • Republic v Director of Survey & 2 Others ex parte Sayani Investments
    [2018] eKLR
  • Hon. Lady Justice Kalpana Rawal H. v Judicial Service Commission
    Supreme Court of Kenya Civil Application No. 11 of 2016
  • Hassan Ali Joho & Another v Suleiman Said Shabbal & 2 Others
    Supreme Court of Kenya Petition No. 10 of 2013
  • Hassan Ali Joho & Another v Suleiman Said Shabbal & 2 Others
    [2013] eKLR
  • Mukisa Biscuit (case referenced as authority)
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.