Stephen Kithinji Ngaruthi v Chief Magistrate Court at Milimani, Attorney General & Lucy Ncekei [2017] KEHC 891 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW

MISCELLANEOUS APPLICATION NO.  631  OF 2017

IN THE MATTER OF ARTICLES  50 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF JUDICIAL REVIEW

AND

IN THE MATTER OF STEPHEN KITHINJI NGARUTHI

AND

IN THE MATTER OF THE CHIEF MAGISTRATE’S COURT AT MILIMANI COMMERCIAL COURTS CIVIL CASE NO.  3927 OF 2017

AND

IN THE MATTER OF APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF JUDICIAL REVIEW FOR ORDERS OF CERTIORARI PROHIBITION PURSUANT TO ORDER 53  OF THE CIVIL PROCEDURE  RULES  2010

BETWEEN

STEPHEN KITHINJI NGARUTHI ………………………… APPLICANT

VERSUS

THE CHIEF MAGISTRATE COURT AT MILIMANI…….... 1ST RESPONDENT

ATTORNEY GENERAL………………………………….... 2ND RESPONDENT

LUCY NCEKEI…………………………………………....... INTERESTED PARTY

RULING

1. The exparte applicant STEPHEN GITHINJI NGARUTHI seeks from this court vide a chamber summons dated 22nd October 2017, leave of the court to institute Judicial Review orders of:

a) Certiorari to remove into this court and quash the decision of the 1st respondent Chief Magistrate’s Court at Milimani made on 7th June 2017 and all other consequential orders and actions thereof in Nairobi Chief Magistrate CC 3927 of 2017 between Lucy Ncekei and Stephen Kithinji Ngaruhi.

b) Prohibition to prohibit the 1st respondent Chief Magistrate’s Court at Milimani Law Court CC 3927 of  2017 between the applicant and interested party herein.

c) That grant of leave does operate as a stay of the proceedings or any further actions thereof in Nairobi Chief Magistrate’s CC 3927/17 between the applicant and interested party herein.

d) That costs be provided for in any event.

2. The application is predicated on the grounds on the face of the chamber summons, the statutory statement and verifying affidavit and annextures.

3. The exparte applicant’s case is that the interested party herein Ms Lucy Ncekei filed suit vide Milimani Chief Magistrate CC 3927/2017 and obtained orders of injunction restraining the exparte applicant from evicting her from what she calls her matrimonial home.

4. The interested party also filed an application in the said civil suit seeking for interim orders and the court granted her injunctive orders restraining the exparte applicant herein from threatening to evict, evicting or otherwise interfering with the interested party’s quiet living in the suit premises pending hearing and determination of the application interpartes.

5. It is claimed that the OCS Buruburu Police Station or incharge of Local Administration Police was ordered to supervise and enforce the court order of injunction. The trial  magistrate ( Honourable  G.A. Mmasi  (Mrs) Senior Principle Magistrate also directed  that the application  be served for  interpartes hearing on 20th June 2017 before Honourable  Ocharo, Senior Resident  Magistrate.

6. Upon the exparte applicant herein being served with the   application and injunctive orders, he filed an application under certificate of urgency and a replying affidavit under protest.  He also filed a preliminary objection to the applications in the subordinate court contending that the court had no jurisdiction to determine matters involving ownership, use, occupancy and title of land and in particular, ownership of LR No.  Nairobi/Block 82/1589. He also contended that the issues raised in the plaint dated 30th May 2017 and the application raised issues of matrimonial property and the Chief Magistrate’s Court lacked jurisdiction to determine the matter; and that without prejudice to the foregoing, the court lacked jurisdiction to determine the suit as the property in question is not matrimonial property as envisaged by the Matrimonial Property Act, 2013; the applicant also claimed that the suit discloses no reasonable cause of action.

7. The applicant herein who was the defendant in the said suit also  filed an applications under certificate of urgency seeking the trial court to stay and discharge the  exparte orders  of injunction  given on 6th June 2017, while urging the  court to strike  out/ dismiss  the  suit with costs.

8. The exparte applicant claims that the alleged matrimonial home on the suit land belongs to him as it was jointly owned by him and his deceased wife Helen Igoki Kithinji and that after her demise, he petitioned for letters of administration vide High Court Succession Cause No. 2235 of 2009.  That he was issued with a grant which grant was confirmed on 11th June 2012 distributing the property to the applicant and   his three children sired with the deceased Helen Igoki Kithinji in varying shares.  That  therefore  there is no way that the interested party  herein who was merely invited  into his  home as  a ‘visitor’  after she had been evicted  from her Karen Home could have  acquired  rights over  the exparte applicant’s home and property  which he co-owned with his  late wife.

9. As is the norm, the learned trial magistrate heard the preliminary objection interpartes and delivered her ruling on 25th August 2017 dismissing it with costs.  It was then that  the  exparte applicant herein did on 23rd October 2017 file the  chamber summons herein, after about  2½ months seeking  leave to institute Judicial Review proceedings challenging the jurisdiction of the Chief Magistrate’s Court to hear and determine the dispute before her which he claims revolves   around  ownership and occupancy of  his home by the interested  party herein and whom he calls a ‘visitor’.

10. In the view of the exparte applicant, the trial magistrate is purporting to set aside/revoke the orders of confirmation of a grant in his favour as issued by the High Court in the succession Cause No. 2235/2009.  The exparte applicant takes  issue  with the  interested  party’s  claim  in the lower court at  paragraph  4  of her plaint  where she alleged that  she  participated  in the purchase of the property  which she claims  is her  matrimonial property.

11. In the view of the exparte applicant, the interested  party’s  claim will affect  the  rights  of the applicant  and his  children  as they  live  in the home.  He urged the court to grant leave as prayed.

12. The chamber  summons was opposed by the  respondents  represented  by the Attorney General who filed grounds of opposition dated 14th November  2017 contending  that the application lacks merit and  is based on misconception  of the law; that  the  applicant  had not  addressed  any grounds  in his statement  of facts as filed to warrant leave; that the application is an attempt to appeal  against the ruling of the  1st  respondent  albeit  disguised  as  a Judicial Review  application; that the 1st respondent acted  within jurisdiction in issuing the impugned  order of  7th June  2017 and was within his mandate in issuing the interim injunction and that the application here is clearly an abuse of the  court process  and  should be  dismissed forthwith  with costs.

13. The interested party Lucy Ncekei filed a replying affidavit  sworn by herself on 10th November 2017 deposing that the affidavit   sworn by the  applicant  is  defective  because it  does not  bear a date when  the same  was sworn and  commissioned.  She denies ever claiming for ownership of the subject property.  She asserts that a married woman who moves into a house  whether owned  or rented  by her husband  is entitled to  live in that house as matrimonial home hence the  trial magistrate had jurisdiction to issue orders  that she did  and to try the suit before  her because she  was not dealing with matrimonial  property  but  matrimonial  home.  That she moved  into the  house  as the  wife  to the  applicant, not because  she  was   evicted  from her rental  house in Karen.

14. Parties’ advocates and the interested party acting prose, argued the application orally before me on 5th November 2017 wholly adopting and replicating their pleadings and or affidavits on record and maintaining their respective positions as reproduced above.

15. With the applicant’s counsel Miss Kiniti submitting that the trial  court has no  jurisdiction to hear  and  determine  the issues before her which  attempt  amounts  to revoking the confirmed  grant  in the succession cause  which is  determined.

16. Miss Maina for the  respondents  added that the  applicant  should have appealed against the dismissal of the preliminary  objection  instead of filing Judicial Review  and that the trial court properly  addressed  itself  to the  issues before  her.

17. Ms Lucy  Ncekei  also relying on her sworn replying affidavit submitted   emphasizing  that the verifying  affidavit  by the applicant  is fatally defective as it is not dated; that in the statutory  statement  she is  not described  as a party  and that  she  was  only included  in the reliefs sought. The interested party maintained that she never sought  ownership  of the matrimonial home as alleged  by the applicant.  That she only sought justice to restrain the applicant from evicting her and harassing her including withholding of her clothings.  She believes that the lower court has jurisdiction to hear and determine the dispute before it.  She urged the court to dismiss the application for leave.

18. In a brief rejoinder, Ms  Kiniti maintained  that the interested  party had laid  claims  of purchaser  of the  matrimonial property  and  that the preliminary objection raised  before the trial court   was well  founded  but that the  Chief Magistrate’s Court acted outside  its powers.

DETERMINATION

19. I have considered  the  foregoing  and  in my view, the issues   for consideration are whether this court  should grant  leave  and if so whether such leave should operate as stay of proceedings before  the Chief Magistrate’s Court in CM CC 3927/17.  But first is the competency of the exparte applicant’s verifying affidavit which is not dated though signed by him. In my view, failure  to date a  document or  an affidavit  which is duly  filed  cannot be  fatal to the proceedings  especially where  the document  is filed in court  as part  of the proceeding   and  as the document  is   duly signed.  The  situation  would have  been different  if the  applicant’s  affidavit  had not  been signed, for ownership. I am  therefore  in agreement with  Miss Kiniti  that the defect  identified  is a mere technicality  and this court can, under  Order 19  Rule  6 of the Civil Procedure Rule  admit  any  affidavit  notwithstanding  the  defect  therein  which does not  go to  the  substance of the case. The date of the document can safely be inferred to be the date when it was filed in court.

20. The interested party also raised an issue that she was not described by the applicant and that she only features in the reliefs sought, which means that the applicant had no intention of enjoining her to these proceedings.  In my humble view, the  defect identified is a mere procedural fault  or flaw which is  curable  by  application of Article 159(2) (d)  of the Constitution  which is clear that  justice shall be administered  without  undue  regard to procedural technicalities, as the interested party is now a party to these proceedings and has had her day in court.

21.  I now delve into the main issues of leave and if it is merited, whether leave should operate as stay.

22. For the applicant to be granted leave to apply for Judicial Review  remedies  of Certiorari and  Prohibition  as stipulated  in Sections  8 and  9  of the Law Reform Act and Order  53  Rule  1 of the Civil Procedure Rules, he must appreciate that the power to grant or decline leave to apply is a discretionary  power vested in the court and therefore that discretion must, like all other judicial discretions, be exercised  judiciously and not  capriciously or whimsically.

23. The jurisdiction to supervise the subordinate courts and therefore interfere in their exercise of jurisdiction over a matter is clothed in this court by Article 165(6) of the Constitution.  But that jurisdiction vested in this court is not jurisdiction to police the exercise of discretion by the subordinate court.

24. The applicant must satisfy this judicial review court that he has a prima facie arguable case to warrant a indepth investigation at the substantive hearing before leave to apply can issue.

25. Leave  stage, it has been  held, not once, is a filter whose  aim is to weed out hopeless  cases at the earliest  possible  time, thus saving the  pressure on the courts  and  needless  expense for the applicant  by allowing  malicious  and futile  claims  to be weeded  out or  eliminated  so as to  prevent  public bodies  being  paralysed  for  months because  of pending  court action  which  might turn out to be unmeritorious( see Matiba vs Attorney  General  Nairobi High Court Miscellaneous Application No. 790/1993).In Republic vs County Council of Kwale & Another, Exparte  Kondo and 57 Others Mombasa HCC Miscellaneous Application  384/1996, Waki  J made  it clear  when he stated, inter alia,

“ The purpose of application for leave to apply for Judicial Review is firstly to eliminate at  an early  stage  any application for Judicial Review  which are either  frivolous, vexatious  or hopeless and secondly, to ensure that the applicant is only allowed to proceed to the substantive hearing is the court is satisfied that there is a case for  further consideration.  The requirement that leave must be obtained before making an  application for Judicial Review is designed to prevent  the time of the court being wasted  by busy  bodies with  misguided  or  trivial  complaints or administrative error, and  to remove the uncertainly in which public officers  and authorities  might be  felt as to whether they could safely proceed with administrative  action while proceedings for Judicial Review of it were actually pending  even though misconceived….leave  may only  be granted if  on the material  available, the court is  of the view, without  going into the  matter indepth, that there  is an arguable case for granting the relief  claimed  by the applicant, the test being whether there is a case fit for further  investigation at a full interpartes  hearing of the substantive  application for Judicial Review.  It is an exercise of the court’s discretion but as always it has to be exercised judicially.”

26. The yardstick for leave was captured in Mirugi Kariuki vs Attorney General civil Application No. 70/1991 [1990-1994] [1992] KLR 8 in the following terms:

““The law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter on which the Court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power…the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter… It is not the absoluteness of the discretion nor the authority of exercising it that matter but whether in its exercise, some of the person’s legal rights or interests have been affected. This makes the exercise of such discretion justiciable and therefore subject to judicial review. In the instant appeal, it is of no consequence that the Attorney General has absolute discretion under section 11(1) of the Act if in its exercise the appellant’s legal rights or interests were affected. The applicant’s complaint in the High Court was that this was so and for that reason he sought leave of the court to have it investigated. It is wrong in law for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the matter of his complaint. If he fails to show, when he applies for leave, a prima facie case, on reasonable grounds for believing that there has been a failure of public duty, the Court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables the Court to prevent abuse by busybodies, cranks and other mischief-makers… In this appeal, the issue is whether the appellant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of the Act was brought into question. Without a rebuttal to these allegations, the appellant certainly disclosed a prima facie case. For that, he should have been granted leave to apply for the orders sought.”

27. In R vs. Communications Commission of Kenya & 2 Others Ex Parte East Africa Television Network Ltd. Civil Appeal No. 175 of 2000 [2001] KLR 82; [2001] 1 EA 199, the Court of Appeal was of the view that leave should be granted if, on the material available, the Court considers, without going into the matter in depth, that there is an arguable case for granting leave.

28. In Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 (HCK), the Court stated:

“Application for leave to apply for orders of judicial review are normally ex parte and such an application does restrict the Court to threshold issues namely whether the applicant has an arguable case, and whether if leave is granted, the same should operate as a stay. Whereas judicial review remedies are at the end of the day discretionary, that discretion is a judicial discretion and, for this reason a court has to explain how the discretion, if any, was exercised so that all the parties are aware of the factors which led to the exercise of the Court’s discretion. There should be an arguable case which without delving into the details could succeed and an arguable case is not ascertained by the court by tossing a coin or waving a magic wand or raising a green flag, the ascertainment of an arguable case is an intellectual exercise in this fast growing area of the law and one has to consider without making any findings, the scope of the judicial review remedy sought, the grounds and the possible principles of administrative law involved and not forget the ever expanding frontiers of judicial review and perhaps give an applicant his day in court instead of denying him…. Like the Biblical mustard seed which a man took and sowed in his field and which the smallest of all seeds but when it grew up it became the biggest shrub of all and became a tree so that the birds of the air came and sheltered in its branches, judicial review stemmed from the doctrine of ultra vires and the rules of natural justice and has grown to become a legal tree with branches in illegality, irrationality, impropriety of procedure (the three “I’s”) and has become the most powerful enforcer of constitutionalism, one of the greatest promoters of the rule of law and perhaps one of the most powerful tools against abuse of power and arbitrariness. One can safely state that the growth of judicial review can only be compared to the never-ending categories of negligence after the celebrated case of Donoghue vs. Stephensonin the last century. Although leave should not be granted as a matter of routine, where one is in doubt one has to consider the wise words of Megarry, J in the case of John vs. Rees [1970] Ch 345 at 402. In the exercise of the discretion on whether or not to grant stay, the court takes into account the needs of good administration.”

29. From the foregoing decisions which have stood the test of time, leave is discretionary and not mandatory exercise of the court’s jurisdiction.  If the court  hearing  the  application for leave  is of the view that there is an arguable prima facie case for  consideration  at the substantive  stage,  the court will grant  leave  so as to accord the applicant  an opportunity  to ventilate  his  grievances.  However, where is it clear  that the applicant is using  this court  as an  appellate  fora and  or where the  court is satisfied that there are other available efficacious alternative  remedies which the  applicant could have resorted  to, as stipulated in section 9 of the Fair Administrative Action Act, 2015, the court will not grant leave.

30. This court warns itself of  the  dangers of delving  into the merits of the claim before the  trial court   as that would   prejudice  the  parties’ positions and  the trial magistrate  would  be placed  in an embarrassing  situation especially where it has pronounced  itself on the  issue of  her jurisdiction to hear the  dispute before her, as this is not an appeal challenging the decision to hear the matter before her.

31. Nonetheless, it is the pleadings before the lower court that are before this court for examination to determine whether the allegations that the lower court is acting ultra vires has substance from whence this court must ascertain the arguability of the intended application for judicial review orders.

32. In the plaint dated 30th May 2017 filed by the interested party herein against the applicant, all the 3 prayers seek for injunctive orders both mandatory, prohibitory and directory against the applicant, from evicting the interested party from their matrimonial home; and general damages for physical, psychological and emotional injury/suffering.  There is no single claim for ownership of  the alleged matrimonial  home  or property by the interested party. However, in her affidavit in support of  her interlocutory  application for injunction sworn on 30th May  2017,  she claims  that she had been  customarily  married to the applicant for now close to three years and that the applicant  had kicked her out of the home yet  they ran joint  businesses  together.  She deposed that she was homeless after being kicked out of the home.

33. The applicant in reply thereto deposed that the interested party is merely  a visitor in his home not a wife and that neither can she lay claim to his home which he acquired with his late wife and  which he was issued with a grant  as confirmed in the named  succession cause.

34. My very humble view of this matter is that  the applicant  having raised  the  issue of  jurisdiction of the lower court  to hear  and  determine the matter and having challenged  the exparte  orders issued on 7th June  2017  by the Chief  Magistrate’s Court, he had  the option  of either  appealing against the ruling/decision of  the trial court on jurisdiction  or, since the said applications  for injunction and for setting  aside/discharging  the  injunction  are still pending before the trial court, he proceeds to have them determined on their merits before he can make a decision  whether or not  to appeal against the  orders issued, depending  on the outcome.

35. Even assuming that the trial magistrate erred in finding and holding that it has jurisdiction to hear and determine the dispute before her, what the applicant herein contests is not ordinary jurisdiction.  It is  jurisdiction  conferred  by the Constitution  on the courts contemplated in Article 162(2)(b) of the Constitution in this case, the Environment and Land Court; which has jurisdiction to hear and determine disputes relating to the environment  and the use  and  occupation of  and  title to, land. Similar jurisdiction can be found in Section 13 of the Environment and Land Court.

36. In Article 165(5) (b) of the Constitution, this court is expressly barred from hearing and determining disputes exclusively reserved for the courts contemplated in Article 162(2) of the Constitution.  It therefore follows that this court would not, in any event, have the necessary jurisdiction to hear and determine the issue of whether or not the trial court has jurisdiction to hear and determine disputes contemplated in Article 13 of the Environment and Land Court Act.

37. That jurisdiction is vested in the Environment and Land Court where, then, the applicant herein should have filed his application   for leave to institute Judicial Review proceedings  and not before this court.

38. It is trite law that jurisdiction is everything without  which, this court  acts in  vain.  This court  does not  exercise  jurisdiction  on behalf of Environment  and  Land Court.( See Owners of Motor Vessel “Lilian S” vs  Caltex Oil (K) Ltd [1989] KLR  1.

39. Section13(7) of the Environment and Land Court Act empowers the Environment and Land Court to make orders including prerogative orders. The Environment and Land Court enjoys exclusive original and appellate jurisdiction to hear and determine disputes and appeals from subordinate courts and tribunals on matters falling under the jurisdiction of the Environment and Land Court.

40. That being the case, I find and hold that the applicant has not demonstrated that this court has the jurisdiction to grant leave to apply to challenge the proceedings and decision of the subordinate court which would otherwise  be within the powers  of Environment and Land Court; neither has he demonstrated  that  he has an arguable prima facie case capable  of inquiry  by this court  at the substantive stage.

41. For those reasons, I am inclined to decline the application for leave.  I proceed and dismiss it and order that each party shall bear their own costs of the application.

Dated, signed and delivered in open court at Nairobi this 11th day of December 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Mogaka h/b for Kiniti for the applicant

Mr Munene h/b for Miss Maina for the Respondents

Ms Ncekei the Interested Party in person