Muriuki Kimondo v Maina

High Court, Nyeri 17th June 1977

Sachdeva J

Judicial review - procedure - leave to make application - form of application - chamber summons – Civil Procedure Rules, order LIII, rule 1.

Judicial review - certiorari - tribunal to which directed - authority of tribunal to take decisions - need for evidence of such authority.

An application for leave to apply for an order of certiorari, mandamus or prohibition under the Civil Procedure Rules, order LIII, rule 1 should be made by chamber summons.

Before granting leave to issue an order of certiorari, it is the duty of the court to satisfy itself that the person whom the complaint is made has legal authority to determine questions affecting the rights of subjects and has the duty to act judicially.

No cases were referred to in the judgment

Application

Muriuki Kimondo applied to the High Court (Miscellaneous Application 8 of 1977) for an injunction to restrain the first respondent, Francis Maina, from interfering with and trespassing on certain land and for leave to apply for leave for orders of certiorari and mandamus directed to the second and third respondents, the senior settlement officer 1 and the district surveyor at Nyeri, in respect of a decision relating to the position of a boundary. The facts are set out in the judgment.

Republic v Jeremano M’Ngai

High Court, Nyeri

26th January 1977

Sachdeva J

Criminal Case No 434 of 1972

Criminal law – defences – insanity - effect of special findings – Penal Code - (cap 63), section 12 - Criminal Procedure Code (cap 75), section 166(1).

The effect of a special finding under section 166(1)(a) of the Criminal Procedure Code that an accused was insane when he committed the act (or omission) with which he is charged does not provide him with a complete defence to the charge entitling him to an acquittal and there is no conflict between the terms of 166(1) and those of section 12 of the Penal Code in this respect. Uganda v Matte [1974] EA [575] explained.

Cases referred to in judgment:

1. Jama Warsama v R (1950) 17 EACA 122.
2. Muswi (Philip) s/o Musele v R (1956) 23 EACA 622.
3. R v Kabande w/o Kihigwe (1948) 15 EACA 135.
4. R v Kachinga (1946) 13 EACA 135.
5. R v Mwose w/o Mwiba (1948) 15 EACA 161.
6. R V Noormohamed Kanji (1937) 4 EACA 34.
7. R v Retief (1941) 8 EACA 71.
8. Uganda v Matte [1974] EA 575, Nyamuchoncho J.

Trial

Jeremano M’Ngai was charged with murder on three counts (Criminal Case No 434 of 1972). The facts are set out in the judgment of Sachdeva J.

Advocates

Etyang State counsel for the Republic.

Kariuki for the Accused.