Simwah & another v Kakamega County Assembly Service Board; Akosi (Interested Party) (Judicial Review E005 of 2022) [2023] KEELRC 888 (KLR)
The bottom line
#A Bungoma court dismissed a challenge to a county board's 45-day forced leave, ruling that judicial review cannot fix decisions that have already taken effect.
What this practically means
#Executive summary
#Key legal issues
#Whether the letter dated 9th December 2022 amounted to an indefinite suspension capable of being quashed by certiorari
No; it placed the applicants on a definite 45-day compulsory leave which had expired
The court found the letter gave a definite 45-day period which lapsed on 9th February 2023. Although the leave was compulsory since the applicants did not apply for it and investigations were to run during it, it was not an indefinite suspension. Certiorari therefore could not issue, and the application was overtaken by events.
Whether prohibition could issue in respect of the letter dated 9th December 2022
No; the decision was already made and effected, and prohibition lies only against contemplated decisions
Relying on the Court of Appeal decision in Kenya National Examination Council v Republic Exparte Geoffrey Gathenji Njoroge, the court held that the applicants had already proceeded on the leave and the 45 days had expired. The subsequent interdiction letters raised a new, unpleaded cause of action over which the court lacked jurisdiction.
Whether the subsequent interdiction letters of 8th February 2023 could be brought within the application
No; they constitute a new cause of action not pleaded
The court held that its jurisdiction was confined to the impugned letter of 9th December 2022 and the prayers sought, parties being bound by their pleadings. The interdiction letters were a fresh decision requiring a separate challenge. Damages or declaratory relief for any unlawfulness are not available in judicial review.
Legal principles established
#- An order of prohibition can only be issued to prevent the making of a contemplated decision, not to quash or prohibit a decision already made
- A court cannot go beyond the relief sought in the statement
- Courts should exercise judicial restraint and not interfere with ongoing processes of other arms of government, including county assemblies exercising statutory roles
- Where an implemented decision is found unlawful, the remedy lies in damages or declaratory orders, which are not available in judicial review proceedings
Court orders
#- 1.The Exparte Chamber summons application dated 13th December 2022 is dismissed
- 2.Each Party to bear own costs
- Jurisdiction invoked
- Judicial review jurisdiction under the Constitution and statute (Orders of the Civil Procedure Rules 2010 on applications for prerogative orders); court's jurisdiction limited to the relief sought in the statement
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simwah & another v Kakamega County Assembly Service Board; Akosi (Interested Party) (Judicial Review E005 of 2022) [2023] KEELRC 888 (KLR)", Case Analysis (2023). Bungoma High Court Judicial Review Application (Chamber Summons dated 13th December 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/888/eng@2023-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.