Jotham Mulati Welamondi v The Chairman, Electoral Commission of Kenya

High Court, at Bungoma

July 30, 2002

Ringera J

Miscellaneous Application No 81 of 2002

Judicial Review – proceedings – preliminary objections – stage at which objections may be raised – type of objections that can be raised at the beginning and those that can be raised later – special jurisdiction of review – whether provisions of rules and provisions of law outside order LIII of the Civil Procedure Rules can be invoked in judicial review proceedings – the proper format and title of applications for judicial review.

Judicial Review – orders – certiorari, mandamus and prohibition – when these orders can issue – nature of the remedy of mandamus and when it can be sought – whether the Electoral Commission can be compelled by mandamus to revise and alter constituency boundaries – whether mandamus can issue when a public body is exercising a discretionary power.

Election Law – Electoral Commission – whether the constitution imposes a duty on the Electoral Commission in respect of electoral boundaries – whether an order of mandamus can issue – whether the court is entitled to interfere with the exercise of discretion of the Electoral Commission in the exercise of a discretionary power.

Civil Practice and Procedure – parties to suits - representative suits – institution of representative suits.

The applicant filed an application for judicial review seeking an order of mandamus to compel the Electoral Commission of Kenya to transfer one division back to its original constituency together with all registered voters. At the hearing the respondents took several objections. The objections were inter alia, that the application was in competent, that it invoked irrelevant provisions, that the remedy of mandamus sought was inappropriate and that the Electoral Commission had failed in its performance of a public duty.

Held:

1. Objections in limine may be taken to judicial review proceedings at the commencement of the hearing, unless those objections are predicated on disputed facts or call upon the court to exercise its discretion. In this instance the preliminary objection on the basis of alleged non-service is disputed by the applicant.

2. Judicial review proceedings under order 53 of the Civil Procedure Rules are a special procedure; which are invoked whenever orders of certiorari, mandamus or prohibition are sought in either criminal or civil proceedings.

3. In exercising powers under order 53, the court is exercising neither civil nor a criminal jurisdiction in the strict sense of the word. It is exercising jurisdiction sui generis. It therefore follows that it is incompetent to invoke the provisions of section 3A and order 1 rule 8 of the Civil Procedure Act and Rules and sections 42, 79 and 80 of the Constitution of Kenya.

4. A representative suit can only be brought in an ordinary action under the Civil Procedure Act and rules and an action to enforce the fundamental rights guaranteed under sections 70 to 83 inclusive of the Constitution of Kenya can only be brought in separate proceedings by originating summons and in accordance with the laid down special practice and procedure.

5. An order for mandamus could issue to compel the Electoral Commission to perform a duty imposed upon it by the Constitution which is appropriate in the circumstances of this case.

6. Mandamus is the appropriate remedy for compelling a person to perform a duty imposed by statute which duty he has refused to perform. A fortiori it is the appropriate remedy to compel the performance of a constitutional duty.

7. The court is entitled to intervene even where a public body in this case the Electoral Commission is exercising a discretionary power, if that discretion is not exercised judicially, rationally and fairly. The intervention would be by way of prohibition (if the act is incomplete) or certiorari (if the act is complete) and not by way of mandamus.

8. The Constitution of Kenya does not impose any duty on the Electoral Commission to carry out a review of constituency boundaries after a census, therefore there being no peremptory duty, the remedy of mandamus as sought is inappropriate.

9. Mandamus looks at the present situation and aims at enforcing a duty which has not been done, unlike certiorari, mandamus does not quash that which has been done.

10. In this case the Electoral commission is said to have made a decision to transfer Matete division voters from the original Lugari to Malava and that what was sought was a reversal of that decision hence certiorari would have been an appropriate remedy.

11. The objection that the order sought would involve the supervision of the court and accordingly it ought to be refused, is not a preliminary objection but one that can only be raised in opposition to the substantive motion on the merits.

12. All orders of certiorari, mandamus or prohibition issue in the name of the Republic and applications thereof are made in the name of the Republic at the instance of the person affected by the action or omission in issue. The application in this case was completely muddled in form and thus incompetent and misconceived in substance.

 Preliminary objection sustained, motion struck out.

 Cases

1. Marisin, Keduiwo A and others v Samuel Kipsige Arap Soi (suing on behalf of Kilanda Village Group) Civil Appeal No 140 of 1996

2. Farmers’ Bus Service v Transport Licensing Appeal Tribunal [1959] EA 779

3. Kenya National Examinations Council v R Ex parte Geoffrey Gathenji Njoroge and 9 others) Civil Appeal No 266 of 1996

4. Michuki and another v Attorney General and 2 others [2002] KLR 498

5. R v Director-General of East African Railways Corporation, Ex Parte Kaggwa [1977] KLR 194

6. Ogechi, Edgar and 12 others v University of Eastern Africa, Baraton Civil Appeal No 130 of 1997

7. Commissioner of Lands & another v Coastal Acquaculture Ltd Civil Appeal No 252 of 1996

8. Commissioner of Lands v Kunste Hotel Ltd Civil Appeal No 234 of 1995

9.Globe Tour, MV High Court Miscellaneous Application No 39 of 1998

10. Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696

Statutes

1. Constitution of Kenya sections 42, 43, 70-83, 84

2. Civil Procedure Act (cap 21) section 3A

3. Civil Procedure Rules (cap 21 Sub leg) order I rule 8; order LIII rules 3, 4(1), 6

4. Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules, 2001 (Constitution of Kenya Sub Leg) rules 9 and 11(a)

Advocates

Mr HP Wamalwa for the Applicant

Mr Otieno instructed by Onyinkwa & Co Advocates for the Respondent.

Eliud Maniafu Sabuni v Kenya Commercial Bank

High Court, at Bungoma

July 25, 2002

Ringera J

Civil Case No 37 of 2002

Damages - special damages - collision between vehicles - defendant wholly blamed - plaintiff entitled to either cost of repair or value thereof - plaintiff claiming value of the vehicle and loss of user - whether damages in the nature of special damages - whether damages must be pleaded with particularity and strictly proved - plaintiff’s duty to mitigate the loss.

Damages - for loss of user of motor vehicle - Time for which loss be assessed - what will constitute a reasonable time - no evidence as to the exact quantum of loss- degree of proof required.

The Plaintiff sued the Defendant claiming value for his damaged vehicle and damages for loss of user following a collision between his vehicle and that of the Defendant. The Plaintiff’s vehicle had been written off and from the evidence it had been established that the Defendant was wholly to blame for the accident. The Plaintiff claimed compensation for loss of user at the rate of Kshs. 4,000/= from the day of the accident to the day the judgment was delivered although he did not produce evidence that the amount of Kshs. 4,000/= represented his daily income from the use of the vehicle.

Held:

1. When the tort complained of has resulted in damage to the chattel, the Plaintiff is entitled to either the cost of repair thereof or to the value thereof and any consequential loss which is not too remote, subject to the Plaintiff’s duty to mitigate the loss.

2. Both types of loss are in the nature of special damages and the law is settled beyond peradventure that such damages must be pleaded with particularity and strictly proved.

3. Once the Plaintiff has been compensated for the value of the motor vehicle he cannot then claim for damages for loss of user thereof subsequently as that would clearly be double compensation.

 4. The Plaintiff whose chattel is damaged by the tortuous act of the Defendant is entitled to damages for loss of user thereof for a reasonable time and what is reasonable time is a matter of evidence in a particular case.

5. The Plaintiff had not proved the exact quantum of the loss of income to the degree of proof required of special damages

. Cases

1. Asonga, Deina & 2 Others v MS Padam & another Eldoret H.C.C.C. No 72 of 1993

 2. Bagine, David v Martin Bundi Civil Appeal No 283 of 1996

 3. African Highlands Produce Ltd v John Kisorio Civil Appeal No 264 of 1999

4. Mwamba Transport Co Ltd v Kenindia Assurance Co Ltd High Court Civil Case No 6859 of 1991

Statutes

 No statutes referred.

Henry Amwayi Ndete v Chairman Land Disputes Tribunal & another

High Court, at Bungoma

July 9, 2002

Ringera J

Civil Miscellaneous Application No 79 of 2002

Judicial Review – certiorari – application for certiorari - form of application – nature, basis and scope of relief – statutory basis – requirement that application should be in the name of the Republic – failure to institute the motion in the name of the Republic - applicant seeking “writ of certiorari” - whether court has jurisdiction to grant such writ - whether the Civil Procedure Rules apply to an application for judicial review under order LIII of the Civil Procedure Rules - Law Reform Act (cap 26) sections 8, 9.

This application sought the prerogative writ of certiorari to issue against the decision of the Land Disputes Tribunal, as it had allegedly acted in excess of its powers. The respondents objected that the application was defective as it was not in the name of the republic. The applicant contended that the Civil Procedure Rules order 6 rule 12 provided that no pleading should be objected to for want of form.

Held:

1. An application for Judicial Review should be made in the name of the Republic.

2. The Law Reform Act (cap 26) section 8(1) which enactment is the statutory basis for the grant of the reliefs of certiorari, mandamus or prohibition, expressely forbids the High Court from issuing any of the prerogative writs of mandamus, prohibition or certiorari. However, subsection 2 does empower the court to issue orders of mandamus, prohibition or certiorari is cases as the High Court in England would do under the provisions of section

7 of the Administration of Justice (Miscellaneous Provisions) Act 1938 of the United Kingdom.

3. This application sought in express terms a prerogative writ of certiorari a relief which the court is expressely barred by statute from issuing.

4. The Civil Procedure Rules Order 53 is a special jurisdiction, as the rules therein are not made under the Civil Procedure Act but under the provisions of section 9 of the Law Reform Act, as illustrated by a reference to the very first rules made in connection with prerogative orders in 1957.

5. The Civil Procedure Rules Order 6 rule 12 is made under the provisions of section 81 of the Civil Procedure Act and has no application to proceedings brought pursuant to order 53 which is promulgated in pursuance of the provisions of section 9 of the Law Reform Act.

6. Even if the failure to intitule the motion in the name of the Republic were an error of form curable by order 6 rule 12, which it is not; the prayer for a prerogative writ is not such an error of form. It is an error of substance in that a relief excluded by the statute is expressly sought.

Application struck out.

Cases

Farmers’ Bus Service v Transport Licensing Appeal Tribunal [1959] EA 779

Statutes

1. Civil Procedure Act (cap 21) sections 3A, 81

2. Civil Procedure Rules (cap 21 Sub Leg) order VI rule 12; order L rule 12; order LIII rules 1, 2

3. Registered Land Act (cap 300)

4. Law Reform Act (cap 26) sections 8(1), 9

5. Administration of Justice (Miscellaneous Provisions) Act 1938 [UK]

Kenya Commercial Bank v Kabita t/a Odongo Kabita Valuers

High Court, at Bungoma

June 11, 2002

Ringera J

Civil Case No 56 of 2000

Negligence – professional negligence – duty of care expected of a professional – breach of duty by professional land valuer – incorrect mortgage valuation of land charged to bank – bank advancing money on the basis of valuation – applicable principles in assessment of negligence and damages thereof.

Damages – general damages – for professional negligence - breach of duty by a professional land valuer – measure of damages – particulars of special damages – failure to plead and prove special damages - effect of such failure – applicable principles.

The plaintiff bank instructed the defendant to prepare a mortgage valuation report in respect of a specified property. The valuer, however, valued the wrong property and the bank proceeded to advance its customer a loan on the basis of the wrong valuation. The bank sued the valuer for general damages for breach of contract and full indemnity for the loan facilities granted to the customer together with interest at bank rates.

Held:

1. The defendant as a professional duly instructed by the plaintiff owed a duty of care to the plaintiff since he knew that a professional opinion which the plaintiff would rely on was required.

2. The defendant was also in breach of that duty in that he did not proceed to value the property in accordance with the ordinary standard of care skill and diligence expected of a professional valuer.

3. Although to err may be human, for a professional to err as a result of not applying professional skills and tools is negligence. The defendant had been negligent and he had caused loss to the plaintiff.

4. In assessing the measure of damages in a case such as this, whether the claim be in tort or in contract, the doctrine of restitutio in integrum is the guiding principle – ie the plaintiff should be restored to the same position as he would have been had the breach of contract or tort complained of not occurred.

5. The court would not award special damages unless they were pleaded with particularity and then strictly proved. Even if evidence on special damages were led, it would be ignored if the particulars thereof were not pleaded.

6. The loss which was comprised of interest was too remote and accordingly unrecoverable in this action.

Judgment for the plaintiff in the sum of Kshs 900,000.

Cases

No cases referred to.

Statutes

No statutes referred.

Advocates

Mr Makokha for the Plaintiff.