Automated Summary
Key Facts
Nicholas Mburugu Mugambi applied for judicial review to challenge his revocation as a Councillor, alleging it was illegal, ultra vires, and violated constitutional rights. The court ruled the application incurably defective for mixing judicial review and constitutional jurisdictions, leading to its dismissal with costs. The applicant sought certiorari to quash a gazette notice, mandamus for reinstatement, and prohibition against swearing in new councillors, but these were rejected due to procedural and jurisdictional issues.
Issues
- The court examined whether the notice to the Registrar, which omitted a prayer for mandamus, rendered the application defective. It was concluded that the notice is merely a notification and does not require listing all prayers, so the application remains valid.
- The court addressed the objection that the applicant improperly combined Judicial Review and Constitutional jurisdictions in a single application. It was ruled that these jurisdictions are distinct and cannot be conflated, rendering the application incurably defective.
- The court considered whether a Chamber Summons for leave to commence Judicial Review must be filed in the name of the Republic rather than the applicant. It was determined that the summons is properly filed in the applicant's name initially, with the Republic stepping in after leave is granted, as per precedent cases.
- The applicant requested a prohibition order to prevent the swearing-in of the 5th and 6th respondents as councillors. The court denied this as the appointments had already occurred, and prohibition orders apply to actions not yet taken.
Holdings
- The court ruled that judicial review cannot issue orders against individuals in their personal capacity. The 5th and 6th respondents were struck off as parties and ordered to pay costs, as they could only be included as interested parties.
- The court concluded that the amended Chamber Summons is incurably defective and struck it off with costs to the respondents. This decision was based on jurisdictional mixing and improper party inclusion.
- The court rejected the objection that the notice to the Registrar omitted a mandamus prayer, clarifying that the application and statement, not the notice, must include all prayers. The notice is a procedural formality that cannot invalidate the application.
- The court corrected the respondents' objection that the application was wrongly instituted, citing that a Chamber Summons for judicial review must be brought in the Applicant's name initially, and the Republic steps in only after leave is granted. This aligns with precedents such as FARMERS BUS CO. LTD. V TRANSPORT LICENSING TRIBUNAL and JOTHAM MULATI WELAMONDI V CHAIRMAN ECK.
- The court agreed with the first respondent that the application mixed judicial review and constitutional jurisdictions, which is improper. The court emphasized that these jurisdictions must be distinct, and the application's incurable defect lies in this jurisdictional overlap, as confirmed by cases like KUNSTE HOTEL V COMMISSIONER OF LANDS and R V CCK CA 175/00.
- The court denied the prohibition order against appointing the 5th and 6th respondents, as their appointments had already occurred. Prohibition orders apply only to actions yet to be taken, not retroactively to undo completed acts.
Remedies
- The Applicant's request for an order of prohibition is denied as the 5th and 6th Respondents have already been appointed, and prohibition cannot undo completed actions.
- The Chamber Summons is struck off with costs to the Respondents as it is incurably defective due to the mixing of Judicial Review and Constitutional jurisdictions.
- The 5th and 6th Respondents are struck off as Respondents with costs to them because they cannot be enjoined in their personal capacity as Judicial Review does not allow orders against individuals.
Legal Principles
The court ruled that a judicial review application cannot be combined with constitutional jurisdiction in a single proceeding. It emphasized that Order 53 Civil Procedure Rules and the Law Reform Act establish a sui generis jurisdiction for judicial review, which cannot be overridden by constitutional provisions or other legal frameworks. This principle was reinforced by references to cases like KUNSTE HOTEL V COMMISSIONER OF LANDS and R V CCK CA 175/00, confirming the separation of these jurisdictions.
Precedent Name
- R V CCK
- EVANS MUSUNGU V CM COURT ELDORET
- FARMERS BUS CO. LTD. V TRANSPORT LICENSING TRIBUNAL
- TAIB V R
- R V THE COMMISSIONER OF POLICE ex parte NICHOLAS GITUHU KARIA
- PETER WAWERU V REP
- KUNSTE HOTEL V COMMISSIONER OF LANDS
Cited Statute
- Constitution
- Law Reform Act
- Civil Procedure Rules
Judge Name
R.P.V. Wendoh
Passage Text
- As to whether the application is incurably defective because the notice to the Registrar did not include a prayer for mandamus, I would reject that objection... A Chamber Summons application cannot be defeated on the basis of the notice not stating all prayers sought.
- I must first of all correct the position taken by both Respondents that this application is wrongly instituted. As per the decision in FARMERS BUS CO. LTD. V TRANSPORT LICENSING TRIBUNAL (1959) EAP 779 which was adopted by Justice Ringera in JOTHAM MULATI WELAMONDI V CHAIRMAN ECK, a Chamber summons application for leave to commence Judicial Review proceedings should be brought in the name of the Applicant. However once the leave is granted, the Notice of Motion is brought in the name of the Republic...
- On the 2nd objection that the Judicial Review jurisdiction cannot be mixed with the Constitutional jurisdiction, I do agree with the 1st Respondent. This is because the jurisdiction under Order 53 which is donated by S. 8 and 9 of the Law Reform Act is sui generis... The two jurisdiction should be differentiated. For the reason of the mix up in jurisdiction, the instant amended Chamber summons is incurably defective and should be struck out.