[2009] KEHC 1393 (KLR)
The application was dismissed because the High Court lacks jurisdiction to issue a 'writ' of mandamus as prayed. The statutory framework under the Law Reform Act and the Civil Procedure Rules only empowers the court to issue 'orders' of mandamus, not 'writs'. The applicant's notice of motion specifically sought a...
Source-derived case information.
- Citation
- [2009] KEHC 1393 (KLR)
- Parties
- Plaintiff: Republic; Respondent: Permanent Secretary, Ministry of Lands & Housing; Interested Party: Hon. Attorney General; Applicant: Vijay Morjaria
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 446 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application dismissed
- Legal Topics
- Judicial Review, Mandamus, Prerogative Orders, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Plaintiff
Permanent Secretary, Ministry of Lands & Housing
Respondent
Hon. Attorney General
Interested Party
Vijay Morjaria
Applicant
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the High Court has jurisdiction to issue a writ of mandamus as prayed by the applicant.
- 2 Whether the notice of motion can be amended to substitute 'writ' with 'order' under Order 53 of the Civil Procedure Rules.
Ratio Decidendi
The application was dismissed because the High Court lacks jurisdiction to issue a 'writ' of mandamus as prayed. The statutory framework under the Law Reform Act and the Civil Procedure Rules only empowers the court to issue 'orders' of mandamus, not 'writs'. The applicant's notice of motion specifically sought a 'writ', and there is no procedural mechanism to amend the notice of motion to substitute 'order' for 'writ'. The court, therefore, found itself without jurisdiction to grant the relief sought and dismissed the application accordingly.
Court Disposition
application dismissed
Orders
- The application is dismissed for want of jurisdiction to issue a writ of mandamus.
- No order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT NAKURU
MISCELLANEOUS APPLICATION 446 OF 2006
REPUBLIC………………………………................................………………………...PLAINTIFF
VERSUS
THE PERMANENT SECRETARY,MINISTRY OF LANDS & HOUSING…RESPONDENT
AND
HON. ATTORNEY GENERAL………….............................…………….INTERESTED PARTY
EXPARTE
VIJAY MORJARIA……………….............................…………….….….SUBJECT/APPLICANT
RULING
By a notice of motion dated 27th September, 2006, the applicant seeks orders
“1. That this honourable court be pleased to issue a writ of mandamus against the Permanent Secretary, Ministry of Lands and Housing to compel him to comply with decree issued by court in Nakuru H.C.C.C.No.224 of 1999 and to pay the applicant the decreed sum now standing at Kshs.534,700/= together with such further interest as may accrue till payment is made in full”
I do not intend to go beyond this prayer.
The statutory basis for judicial review in Kenya is the Law Reform Act Cap. 26. Part Vl and specifically section 8 sets out the circumstances H.C.C.MISC. APPL. NO.446/06in which the High Court exercises jurisdiction in judicial review matters as follows:
“8. (1) the High Court shall not, whether in the exercise of its civil and criminal jurisdiction, issue any of the prerogative writs of mandamus, prohibition or certiorari
8(2) In any case in which the High Court in England is, by virtue of the provisions of section 7 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, of the United Kingdom empowered to make an order of mandamus, prohibition or certiorari, the High Court shall have power to make a like order.”
(Emphasis added).
The High Court in Kenya can only issue orders as opposed to writs in matters of judicial review.
It is on the basis of this that the Court of Appeal in the case of Commissioner of Land V. Kunste Hotels Ltd. (1995-1998) IEAl held that:
“In exercising the power to issue or not to issue an order of certiorari, the court would be exercising a special jurisdiction ……………………..
H.C.C.MISC. APPL. NO.446/06
By virtue of the provisions of section 7 of the Administration of Justice (Miscellanous Provisions) Act, 1938, of the United Kingdom, which is applicable in this country by reason of section 8(2) of the Law Reform Act, prerogative writs were changed to be known as “orders”, except for the writ of hebeas Corpus. So section 8(1) above denies the High Court the power to issue orders (Writs?) of mandamus prohibition and certiorari.”
Learned counsel for the applicant explained from the bar that the word ought to have been “order” and not “writ”. Did he want the court to amend the notice of motion? It is noted that that is the only prayer in the motion.
There is no provision under order 53 of the Civil Procedure Rules for the amendment of the notice of motion. Order 53 rule 4(2) only allows the amendment of the statement.
This court has no jurisdiction to grant a writ of mandamus and H.C.C.MISC. APPL. NO.446/06therefore this application fails and is dismissed.
I make no order as to costs.
Dated and Delivered at Nakuru this 25thday of September, 2009.
W. OUKO
JUDGE