[2007] KEHC 3755 (KLR)
The application was dismissed because the issues raised had already been determined in a prior High Court judgment, which found that the order staying the Court Martial proceedings had not been extracted or served and had lapsed. The applicant's failure to disclose the existence of this prior judgment constituted a...
Source-derived case information.
- Citation
- [2007] KEHC 3755 (KLR)
- Parties
- Applicant: Lt. Col. Robert T M Kibisu; Respondent: Lt General Jeremiah Mutinda Kianga, Commander, Kenya Army; Respondent: Brigadier Oyugi, Presiding Officer Court Martial
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 365 of 2005
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application dismissed
- Judges
- JW Nyamu
- Legal Topics
- Judicial Review, Contempt of Court, Court Martial Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lt. Col. Robert T M Kibisu
Applicant
Lt General Jeremiah Mutinda Kianga, Commander, Kenya Army
Respondent
Brigadier Oyugi, Presiding Officer Court Martial
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the High Court order staying the Court Martial proceedings took effect.
- 2 Whether the proceedings of the Court Martial were properly convened.
- 3 Whether the applicant failed to disclose the existence of a prior High Court judgment on the same point.
Ratio Decidendi
The application was dismissed because the issues raised had already been determined in a prior High Court judgment, which found that the order staying the Court Martial proceedings had not been extracted or served and had lapsed. The applicant's failure to disclose the existence of this prior judgment constituted a serious non-disclosure of a material fact and an abuse of the court process. Furthermore, judicial review is not an appellate process and cannot be used to challenge the merits of High Court decisions or proceedings. The court reaffirmed that judicial review is limited to examining the decision-making process, not the merits, and that High Court proceedings are not subject to...
Court Disposition
application dismissed
Orders
- The applications dated 14th May 2007 and 12th June 2007 are dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
MISC CIVIL APPLI 365 of 2005
IN THE MATTER OF AN APPLICATION UNDER SECTION 65:
BETWEEN
LT. COL. ROBERT T M KIBISU ................................................................................................. APPLICANT
AND
LT GENERAL JEREMIAH MUTINDA KIANGACOMMANDER, KENYA ARMY......1ST RESPONDENT
BRIGADIER OYUGIPRESIDING OFFICER COURT MARTIAL.................................2ND RESPONDENT
JUDGMENT
The applications before me are dated 14th May 2007 and 12th June, 2007 respectively and both applications seek leave to institute contempt proceedings arising from Court Martial proceedings against the applicant.
I have considered the affidavit filed in support and against the grant of the orders sought. I have also taken into account the skeleton arguments filed on behalf of the parties.
In this matter the substantive point is whether or not the orders issued by the High Court directed at the court and intended to stay the Court Martial proceedings had been served before the proceedings of the Court Martial commenced.
In this matter I intend to be extremely brief for the reason that it is clear, at the outset that the issues raised were the subject matter of a High court judgment of 7th December 2006, Court Martial Criminal Appeal No. 1 of 2005. It is a unanimous decision of my sister Lady Justice Lesit and my brother Mr Justice Makhandia.
At pages 6 and 7 they framed the issues for determination as under:
(1) Did the High Court order in judicial review application staying the proceedings of the Court Martial take effect?
(2) Were the proceedings of the Court Martial properly convened?
(3) Were the charges against the Appellant defective, null and void?
(4) To (8) Not relevant.
The learned judges made a determination at pages 8,9 and 10 to the effect that the order had not been extracted nor served on the Respondents and that the Order had lapsed.
I must therefore dismiss this application for the following reasons:
(1) A judicial review court is not an appeal court. I cannot sit on judgment of my learned colleagues – whether wrong or right.
(2) Judicial review proceedings are generally not directed at merits of decisions but with the decision making process.
(3) Proceedings in the High Court are not subject to judicial review.
(4) The applicant failed to disclose the existence of a High Court judgment dealing with same point and this constitutes a serious non disclosure of a material fact.
(5) From the above observations, the application, constitutes an abuse of the court process.
For the above reasons the applications are dismissed. I make no order as to costs.
DATED and delivered at Nairobi this 26th October, 2007.
J.G. NYAMU
JUDGE