[2009] KEHC 1772 (KLR)
The court held that the application for leave to apply for certiorari was not properly before the court because the applicants had alternative remedies available, namely, to challenge the interim order before the trial magistrate. The interim order in question was only valid for 14 days and had already expired by...
Source-derived case information.
- Citation
- [2009] KEHC 1772 (KLR)
- Parties
- Applicant: Republic; Respondent: The Principal Magistrate Siakago; Applicant: Joseph Munyiita; Applicant: Isa Ireri Ngunia; Applicant: Crispin Njagi; Applicant: Silas Muria Nyaki; Applicant: Agnes Waeni; Applicant: Felista Kanini Ngari; Applicant: Jacton Mwaniki Njuki; Applicant: Joseph Nyaga Njuki; Applicant: Daniel Ireri Ngari; Applicant: Antony Nyaga Njuguna; Applicant: Lucy Wanjiku Nyaga; Applicant: Benjamin Nzau Mulu; Applicant: Wiliam Mukui Nyaga; Applicant: Peter Mukengwa Wambua; Interested Party: Duncan Ireri Mbui; Interested Party: The Clerk County Council of Mbeere
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 16 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Apply for Certiorari
- Outcome
- application dismissed with costs to interested parties
- Judges
- J Karanja
- Legal Topics
- Judicial Review, Certiorari, Abuse of Process, Interim Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The Principal Magistrate Siakago
Respondent
Joseph Munyiita
Applicant
Isa Ireri Ngunia
Applicant
Crispin Njagi
Applicant
Silas Muria Nyaki
Applicant
Agnes Waeni
Applicant
Felista Kanini Ngari
Applicant
Jacton Mwaniki Njuki
Applicant
Joseph Nyaga Njuki
Applicant
Daniel Ireri Ngari
Applicant
Antony Nyaga Njuguna
Applicant
Lucy Wanjiku Nyaga
Applicant
Benjamin Nzau Mulu
Applicant
Wiliam Mukui Nyaga
Applicant
Peter Mukengwa Wambua
Applicant
Duncan Ireri Mbui
Interested Party
The Clerk County Council of Mbeere
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Apply for Certiorari
Legal Issues
- 1 Whether the application for leave to apply for certiorari was properly before the court.
- 2 Whether the applicants should have first sought redress before the trial magistrate instead of approaching the High Court.
- 3 Whether the interim order issued by the magistrate was still valid and capable of being quashed.
Ratio Decidendi
The court held that the application for leave to apply for certiorari was not properly before the court because the applicants had alternative remedies available, namely, to challenge the interim order before the trial magistrate. The interim order in question was only valid for 14 days and had already expired by the time the application was filed in the High Court, leaving nothing to quash. The court emphasized that judicial review is not a panacea and should only be invoked where no other appropriate remedies are available. The application was therefore dismissed as an abuse of the court process and devoid of merit.
Court Disposition
application dismissed with costs to interested parties
Orders
- The notice of motion is dismissed with costs to the interested parties.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL MISCELLANEOUS APPLICATION 16 OF 2008
REPUBLIC…………………………………...................……………………..APPLICANT
VERSUS
THE PRINCIPAL MAGISTRATE SIAKAGO……............................….RESPONDENT
EX-PARTE
1. JOSEPH MUNYIITA
2. ISA IRERI NGUNIA
3. CRISPIN NJAGI
4. SILAS MURIA NYAKI
5. AGNES WAENI
6. FELISTA KANINI NGARI
7. JACTON MWANIKI NJUKI
8. JOSEPH NYAGA NJUKI
9. DANIEL IRERI NGARI
10. ANTONY NYAGA NJUGUNA
11. LUCY WANJIKU NYAGA
12. BENJAMIN NZAU MULU
13. WILIAM MUKUI NYAGA
14. PETER MUKENGWA WAMBUA……….......................….…….……APPLICANTS
AND
1. DUNCAN IRERI MBUI
2. THE CLERK COUNTY COUNCIL OF MBEERE…........……INTERESTED PARTIES
RULING
The Ex-parties applicants who are14 in number through Morris Njage & Co advocates moved this court by way of judicial review on 13/03/08 under a Certificate of Urgency. They were seeking the court’s leave to apply for an order of certiorari to remove into the High Court for the purpose of being quashed the undated order made by the principal magistrate Siakogo in Principal Magistrate Civil Case 606/08.
The copy of the said order which was attached to the application for leave was not dated. The same was however not a certified copy and it’s authenticity is questionable. I say so because the 1st interested party has in his replying affidavit dated 2. 7.2008 annexed a copy of the same order which though not certified was clearly dated. That is nonetheless not the issue.
I have carefully gone through the pleadings to herein including the application for leave and the statements of facts and the annexures thereto. I have also considered the replying affidavits and, the preliminary objection and grounds of opposition the authorities cited and the law applicable in this matter. I will be very brief in this ruling because in my considered view with the application as submitted by counsel for the interested party is incurably defective and amount to an abuse of the court process. I say so because the application was brought to court pursuant to an interim order of injunction granted or issued by the principal magistrate at Siakago court. As rightly stated by counsel for the interested party such an order was only valid for a period of 14 days. Indeed the disputed order clearly indicated that the application was to be heard inter parties on 17/03/08 instead of waiting for the application to be heard inter-parties, the ex-parties applicant rushed to the high court under certificate of urgency and filed the application for leave to file for certiorari orders. His first option should have been to challenge that order before the same magistrate and seen order been set aside. The applicant would then have had the opportunity to give their reasons for asking that the interim order s be set aside. I agree that rushing to this to this court for orders to quash interim orders while there were other options available to the ex-partie applicants was tantamount.
To abuse of the court process although consent for the ex- partie applicants submitted that there were stay orders against the magistrate order, no such orders were annexure to the application. This therefore means that the magistrate orders expired as at17/03/08 and there would be nothing to quash. This application was therefore a non-starter. I would also wish to point out that the council which fells under the Local Government act does not fell within the purview of the Government proceeding Act. The clerk to the council unlike the Attorney General does not represent the Government of Kenya. An injunction can therefore rightly issue against him. These are nonetheless issues that ought to have been confessed before the trial magistrate in an application to set aside the ex-partie orders or at the inter partie hearing. Judicial review proceeding must not been seen as a panacea all cases. The court should only be moved in that jurisdiction where no other appropriate remedies are available. For the above reasons I am satisfied that the notice of the, option before me is not properly before the court. I need not therefore discuss the other issues on merit which have been raised by the ex partie applicant -: i.e. as to whether the elections were properly conducted or not. This notice of motion is devoid of merit .I dismiss the same with costs to the interested parties.
W. KARANJA
JUDGE
15/06/09
Delivered, signed and dated at Embu this 15th day of June, 2009.
In presence of:-
Mr. Okwaro - also holding brief for Mr.Njagagua for 2nd interested party.
W. KARANJA
JUDGE
15/6/2009