[2007] KEHC 3792 (KLR)
The court held that the application for leave to institute contempt proceedings was an abuse of court process because the issues raised had already been conclusively determined by another bench of the High Court in a prior judgment. The applicant failed to disclose the existence of this prior judgment, which...
Source-derived case information.
- Citation
- [2007] KEHC 3792 (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
- applications dismissed
- Judges
- JW Nyamu
- Legal Topics
- Judicial Review Scope, Abuse of Process, Non Disclosure, 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 proceedings are subject to judicial review.
- 2 Whether the issues raised had already been determined by another bench of the High Court.
- 3 Whether the application constitutes an abuse of court process due to non-disclosure of a prior judgment.
Ratio Decidendi
The court held that the application for leave to institute contempt proceedings was an abuse of court process because the issues raised had already been conclusively determined by another bench of the High Court in a prior judgment. The applicant failed to disclose the existence of this prior judgment, which addressed the same substantive points, including whether the High Court's stay order had been served and whether the Court Martial proceedings were properly convened. The court emphasized that judicial review is not an avenue for appealing or revisiting decisions of the High Court, nor is it concerned with the merits of the decision but rather the process. As such, the application was...
Court Disposition
applications 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
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVEW
MISC CIVIL APPLI 365 of 2005
· High Court proceedings not subject to judicial review
· Points raised finally determined by another Bench of the same Court
· Application constitute an abuse of court process
· Applications dismissed.
IN THE MATTER OF AN APPLICATION UNDER SECTION 65:
BETWEEN
LT. COL. ROBERT T M KIBISU ................................................................................................. APPLICANT
AND
LT GENERAL JEREMIAH MUTINDA KIANGA COMMANDER, KENYA ARMY.........1ST RESPONDENT
BRIGADIER OYUGI PRESIDING 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