Abdi & 4 others v Minister Office of the President

& 2 others

High Court, at Meru February 10, 2000

Aganyanya J

Miscellaneous Civil Application No 29 of 1999

Judicial Review – certiorari and prohibition - when the orders may be issued.

Provincial Administration – District Commissioner – role of District Commissioner.

The complainants were herding their livestock comprising of 310 heads of cattle when the second respondent, then District Commissioner, Isiolo District, using regular and administration policemen rounded off and seized all these cattle. The cattle were driven to Isiolo Police Station to be handed over to Samburu herdsmen through the 3rd respondent, the District Commissioner, Samburu District, from whom it was alleged they had been stolen.

Inspite of the complainant’s claim to the head of cattle, the 2nd respondent refused and thereafter proceeded to hand over the cattle to Samburu herdsmen through the 3rd respondent.

The complainants thus filed this action seeking an order of prohibition to issue to stop the respondents from seizing and alienating the applicants’ 310 herd of cattle seized from them on 6th May 1999 and further an order of certiorari to issue to quash the respondents’ decision to seize and deliver to the Samburu community the applicants’ 310 herd of cattle. Finally the applicants sought an order of mandamus for the 2nd and 3rd respondent to account and give back to the applicants the 310 herd of cattle seized from them. The applicants’ contention was that they had been deprived of their right to property contrary to law and without due process and that they were denied an opportunity to be heard in order to ascertain whether these particular cattle had been stolen or the claimants were rightful owners thereof.

Held:

1. An order of certiorari is issued to quash a decision or order already made if such decision or order is made without or in excess of jurisdiction or where the Rules of Natural Justice are not complied with or such like reasons.

2. An order of prohibition is one from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land.

3. Prohibition looks to the future and an order thereof must be issued on an anticipated event. It cannot intervene when a decision has already been made.

4. A District Commissioner is the head of an administrative district and he chairs various district committee meetings including education, security, agricultural and many others.

5. Apart from chairing security meetings in the district, there is no statutory duty vested in the District Commissioner to go out or send his officers out on attachment missions.

6. The Court could not make an order quashing the decision of the District Commissioner to hand the heads of cattle to the Samburu clansmen since such an order would be in vain.

Application declined.

Cases

Kenya National Examination Council v Republic Ex-parte Geoffrey Gathenji Njoroge & others Civil Appeal No 266 of 1996

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order LIII