[2015] KEHC 5683 (KLR)
The court held that the applicant's motion was incompetent because the order of prohibition is only available to prevent a tribunal or body from continuing with proceedings where it is acting without jurisdiction or in breach of natural justice. In this case, the decision had already been made and adopted as a...
Source-derived case information.
- Citation
- [2015] KEHC 5683 (KLR)
- Parties
- Plaintiff: Simon Musyoka Mavua; Respondent: Makueni District Land Disputes Tribunal; Respondent: The Chief Magistrate’s Court; Respondent: Machakos District Land Registrar Makueni; Respondent: Ngula Mavua
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 140 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion to Prohibit Enforcement of Tribunal Award
- Outcome
- motion struck out as defective and incompetent
- Judges
- CM Kariuki
- Legal Topics
- Judicial Review, Prohibition Orders, Certiorari, Natural Justice, Jurisdiction, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Musyoka Mavua
Plaintiff
Makueni District Land Disputes Tribunal
Respondent
The Chief Magistrate’s Court
Respondent
Machakos District Land Registrar Makueni
Respondent
Ngula Mavua
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion to Prohibit Enforcement of Tribunal Award
Legal Issues
- 1 Whether the tribunal acted ultra vires and lacked jurisdiction to entertain the dispute.
- 2 Whether the tribunal breached the rules of natural justice by condemning the applicant unheard.
- 3 Whether an order of prohibition is available after the decision has already been made and adopted as a judgment of the court.
Ratio Decidendi
The court held that the applicant's motion was incompetent because the order of prohibition is only available to prevent a tribunal or body from continuing with proceedings where it is acting without jurisdiction or in breach of natural justice. In this case, the decision had already been made and adopted as a judgment of the court, making prohibition unavailable. The proper remedy would have been certiorari to quash the decision. The applicant failed to explain why certiorari was not sought. Consequently, the motion was struck out as defective and incompetent.
Court Disposition
motion struck out as defective and incompetent
Orders
- The Notice of Motion dated 9.5.2009 is struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
ELC CASE NO.140 OF 2009
SIMON MUSYOKA MAVUA.………..………......……………………. PLAINTIFF
VERSUS
MAKUENI DISTRICT LAND DISPUTES TRIBUNAL…...…1ST RESPONDENT
THE CHIEF MAGISTRATE’S COURT…..……………...…. 2ND RESPONDENT
MACHAKOS DISTRICT LAND REGISTRAR MAKUENI... 3RD RESPONDENT
NGULA MAVUA ………………………………….…….…. 4TH RESPONDENT
R U L I N G
In the TREATISE LAW HAND BOOK (Your Practical guide to the Law in Victoria) opines that:
“Prohibition is an order to a tribunal public body or official requiring it to cease proceedings. An order of prohibition should be sought where a body has failed to exercise its jurisdiction properly or failed to provide natural justice and its proceedings are continuing.”
This same view was held by Meru High Court Misc.111/97 SAMSON KIBERA –VS- FRANCIS MUKUNGI & OTHERS in the judgement of Ouko J. as he then was.
The instant Motion filed on 19. 5.09 seeks to prohibit the enforcement of the award adopted as judgment of the court. The ground for impugning it is that the tribunal acted ultra vires as it lacked jurisdiction to entertain the dispute. It is also accused of breaching the rules of natural justice as it condemned Applicant unheard and thus the award and judgment therefore a nullity.
In the cited authority above it is the order of certiorari which is applicable in a situation where the decision has been issued/or made and is being impugned on the ground of want of jurisdiction or breach of rules of natural justice.
In LAW HAND BOOK supra, it is opined that:
“certiorari is an order setting aside a decision (technically, the record of decision maker – is removed to the court and the court then quashes the decision and expunges it from the record). An order of certiorari would be sought where a decision has been made unlawfully and the decision should be set aside. Generally an order of certiorari is sought in combination with an order of mandamus i.e. a certiorari setting aside the decision and an order for mandamus requiring the decision maker to make the decision again.”
The Applicant has not explained or even shown why he never applied for the order of certiorari as the decision complained of had already been made at the point of filing of the instant motion. The order of prohibition would have been available at the time the proceedings were on-going before the tribunal.
The court thus finds the motion defective and incompetent and makes the following orders:
The Notice of Motion dated 9. 5.2009 is struck out.
No orders as to costs.
DatedandDeliveredat Machakosthis 13thday ofMarch, 2015.
CHARLES KARIUKI
JUDGE