[2009] KEHC 3906 (KLR)
The court found that the applicants sought an order of prohibition to restrain the Registrar of Societies from recognizing the Interested Parties as officials of Settle Villagers Scheme. However, the Registrar had already recognized the Interested Parties as officials, as confirmed in a letter dated 12/8/2008. Since...
Source-derived case information.
- Citation
- [2009] KEHC 3906 (KLR)
- Parties
- Applicant: Bishop Philip K Makanga; Applicant: Margaret Muthoni; Applicant: Gedion Macharia; Applicant: Pauline W Njine; Respondent: The Registrar of Societies; Interested Party: Justus Njuguna; Interested Party: Captain Audi Odhiambo
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 49 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave for Order of Prohibition
- Outcome
- application dismissed
- Legal Topics
- Judicial Review, Orders of Prohibition, Societies Registration, Leave to Apply, Procedural Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bishop Philip K Makanga
Applicant
Margaret Muthoni
Applicant
Gedion Macharia
Applicant
Pauline W Njine
Applicant
The Registrar of Societies
Respondent
Justus Njuguna
Interested Party
Captain Audi Odhiambo
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave for Order of Prohibition
Legal Issues
- 1 Whether the applicants are entitled to leave to apply for an order of prohibition against the Registrar of Societies.
- 2 Whether an order of prohibition is appropriate where the impugned action has already been completed.
- 3 Whether the application was properly framed and premised on the correct legal principles.
Ratio Decidendi
The court found that the applicants sought an order of prohibition to restrain the Registrar of Societies from recognizing the Interested Parties as officials of Settle Villagers Scheme. However, the Registrar had already recognized the Interested Parties as officials, as confirmed in a letter dated 12/8/2008. Since prohibition is a prospective remedy meant to prevent future unlawful acts and not to undo completed actions, and since the applicants did not seek an order of certiorari to quash the Registrar's decision, there was nothing left for the court to prohibit. The application for leave was therefore fundamentally misconceived, badly framed, and could not be allowed.
Court Disposition
application dismissed
Orders
- The application for leave is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Civil Misc. Appli. 49 of 2009
BISHOP PHILIP K MAKANGA ……...………………………………….. 1ST APPLICANT
MARGARET MUTHONI ………….……………………………………… 2ND APPLICANT
GEDION MACHARIA …….………………………………………………. 3RD APPLICANT
PAULINE W NJINE ………………………………………………………. 4TH APPLICANT
VERSUS
THE REGISTRAR OF SOCIETIES ……………………………………….. RESPONDENT
AND
JUSTUS NJUGUNA ………………………………………….. 1ST INTERESTED PARTY
CAPTAIN AUDI ODHIAMBO …………………………………. 2ND INTERESTED PARTY
RULING
1. The Application dated 18/2/2009 is premised on Order LIII Rule 1 of the Civil Procedure Rules and leave is sought “for an order of prohibition restraining the Respondent from recognizing, continuing to recognize or accepting, dealing or in any way working with Justus Njuguna and Captain Audi Odhiambo or their proxies as officials of Settle Villagers Scheme.”
2. From the Statement of Facts and the Verifying Affidavit, I note that Settle Villagers Scheme is a society registered under the Societies Act and the ex-parte Applicants and the 1st Interested Party were registered as its officials. That the 1st Interested Party made away with society documents and replaced the bona fide officials with strangers while the Respondent has registered those persons as officials despite a court order in H.C.C.C 1/2009 (Machakos) restraining the Interested Parties from doing certain things with regard to the society.
3. I have perused the annextures to the Verifying Affidavit and I am convinced that the ex-parte Applicants are going about the dispute the wrong way. I say so with respect because orders of prohibition are futuristic in nature and are intended to restrain an unlawful action that is threatened and has not yet been actualized. In this case, what is sought is a prohibitive order to stop recognition, continued recognition or acceptance of the Interested Parties as officials of Settle Villagers Scheme. No order of certiorari is sought to quash the decision to do so and yet in a letter dated 12/8/2008, the Respondent had written to confirm that the recognized, accepted officials of the society are the Interested Party. What else is left to prohibit? I submit none and for that reason alone, the summons must fail.
4. The Application for leave is badly thought out, is badly framed and cannot be allowed as such. Instead it is dismissed with no order as to costs.
5. Orders accordingly.
Dated and delivered at Machakos this 28thday of April2009.
ISAAC LENAOLA
JUDGE
In presence of: N/A for Applicant
ISAAC LENAOLA
JUDGE