[2014] KEHC 7370 (KLR)
The court held that since the decision of the Githurai Land Disputes Tribunal had not been challenged or quashed, the subordinate court's issuance of a decree was a ministerial act for enforcement purposes. There was no illegality or impropriety in the subordinate court's actions. Therefore, an order of prohibition...
Source-derived case information.
- Citation
- [2014] KEHC 7370 (KLR)
- Parties
- Applicant: Republic; Respondent: Githurai Land Disputes Tribunal; Respondent: Chief Magistrate Thika; Respondent: Eunice Wambui Kangethe; Respondent: Rebecca Waringa Njoroge; Applicant: Githunguri Constituency Ranching Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 344 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Prohibition Order
- Outcome
- Notice of Motion struck out as incompetent with costs to the interested parties.
- Judges
- DAS Majanja
- Legal Topics
- Judicial Review, Prohibition Orders, Land Disputes Tribunal, Ministerial Acts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Githurai Land Disputes Tribunal
Respondent
Chief Magistrate Thika
Respondent
Eunice Wambui Kangethe
Respondent
Rebecca Waringa Njoroge
Respondent
Githunguri Constituency Ranching Co. Ltd
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Prohibition Order
Legal Issues
- 1 Whether an order of prohibition can issue against the execution of a decree where the underlying tribunal decision has not been challenged.
- 2 Whether the subordinate court acted unlawfully in issuing a decree based on an unchallenged tribunal decision.
Ratio Decidendi
The court held that since the decision of the Githurai Land Disputes Tribunal had not been challenged or quashed, the subordinate court's issuance of a decree was a ministerial act for enforcement purposes. There was no illegality or impropriety in the subordinate court's actions. Therefore, an order of prohibition could not issue in the absence of a challenge to the underlying tribunal decision. The Notice of Motion was thus incompetent and was struck out with costs to the interested parties.
Court Disposition
Notice of Motion struck out as incompetent with costs to the interested parties.
Orders
- The Notice of Motion dated 17th September 2012 is struck out.
- Costs awarded to the interested parties.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
MISC. CIVL APPL. NO. 344 OF 2012
BETWEEN
REPUBLIC ............………………………………..………………APPLICANT
AND
GITHURAI LAND DISPUTES TRIBUNAL…..……….…...1ST RESPONDENT
CHIEF MAGISTRATE THIKA …………….…………..… 2ND RESPONDENT
AND
EUNICE WAMBUI KANGETHE …………..………1ST INTERESTED PARTY
REBECCA WARINGA NJOROGE ………......…. 2ND INTERESTED PARTY
EX-PARTE
GITHUNGURI CONSTITUENCY RANCHING CO. LTD
RULING
The Notice of Motion dated 17th September 2012 seeks an order of prohibition to prohibit the respondents from executing the decree obtained in the Thika D.O Case No. 14 of 2011 and from continuing to hear or deal in any way with land parcel No. LR RUIRU KIU BLOCK 2(GITHUNGURI)/3874. The said decree arises from a decision of the Githurai land disputes Tribunal proceedings in Githurai Land Case No. RUR/LDT/17/2010 which has not been challenged at all. The decision of the court in issuing a decree is merely ministerial for the purpose of enforcement. In the absence of a plea to quash the underlying decision, the order of prohibition cannot lie as there is nothing wrong the subordinate court has done. In the circumstances, the Notice of Motion dated 17th September 2012 is incompetent. It is struck out with costs to the interested parties.
DATED and DELIVERED at NAIROBI this 22nd day of January 2014
D.S. MAJANJA
JUDGE