Republic v Njeri Njau Wagaki (Ex Parte Applicant)
The bottom line
#The Environment and Land Court in Mombasa struck out a judicial review attempt to quash its own orders, confirming appeals—not judicial review—are the proper remedy.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Ex Parte Applicant, alleged to be in contempt of orders in Mombasa ELC Case No 239 of 2014, should be granted audience in the judicial review application
- 2.Whether the judicial review application, which seeks certiorari to quash orders made by the same court, is procedurally proper
Key legal issues
#Scope of judicial review
Judicial review is concerned with the decision-making process, not the merits of the decision; the review court does not sit as an appellate court over the decider
Relying on Municipal Council of Mombasa v Republic & Umoja Consultants Ltd and Commissioner of Lands v Kunste Hotel Limited, the court reaffirmed that judicial review examines process - jurisdiction, hearing, relevant considerations - not the sufficiency of evidence or merits. Wednesbury and the Sanitam Services case were cited for the narrow exceptional circumstances in which merits may be considered.
Certiorari against the same court's own orders
A party aggrieved by a court's own orders should appeal, not mount judicial review before the same court to quash its own decision
The applicant sought orders of certiorari quashing orders the same court had made in Mombasa ELC Case No 239 of 2014. The court held this was unprocedural and an abuse of court process; the proper remedy is an appeal. The preliminary objection was upheld on this basis, with contempt proceedings left aside.
Discretionary nature of judicial review remedies
Judicial review orders are discretionary and will not be granted as a matter of course; the court considers whether the remedy is the most efficacious in the circumstances
Citing Halsbury's Laws of England (4th Edn, Vol 2) and Republic v Inland Revenue Commissioner Ex Parte Opman International, the court noted certiorari is a discretionary remedy to be refused even where grounds exist, and that judicial review is a procedure of last resort where alternative procedures do not achieve a just resolution.
Legal principles established
#- A court exercising judicial review jurisdiction is only concerned with the procedural propriety of a decision and not the merits
- A court cannot be invited in judicial review proceedings to act as an appellate court to reverse its own decision
- Where there is a clear procedure to address a particular grievance, that procedure should be followed
Court orders
#- 1.The Applicants' judicial review proceedings before the court are struck out with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court
Relief refused
#Judicial review relief (certiorari) against the orders in Mombasa ELC Case No 239 of 2014
The court cannot be invited in judicial review proceedings to act as an appellate court to reverse its own decision; the applicant should appeal if aggrieved
Costs
The judicial review application is struck out with costs to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The court cannot be invited in a judicial review proceeding to act as an appellate court to reverse its own decision.
It is trite law that a court exercising judicial review jurisdiction is only concerned with the procedural propriety of a decision and not the merits.
I find the preliminary objection is merited and that the Applicants' judicial review before this court is struck out with costs.
Issues in the judgment
#The judgment refers to the underlying case as 'the Employment & Land Court' in one place, apparently a typographical error for the Environment and Land Court
The name of the ex parte applicant and the judicial review case number do not appear in the extract; the parties and case number are identified only by reference to the underlying ELC matter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Njeri Njau Wagaki (Ex Parte Applicant)", Case Analysis (2024). Judicial Review application before the Environment and Land Court, Mombasa (ex parte applicant in contempt proceedings in Mombasa ELC Case No 239 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/987/eng@2024-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.