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Court of AppealAllowedCivil Application No. Nai. 131 of 1992 (rule 5(2)(b) application, Court of Appeal)

Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR)

Court of Appeal of Kenya
29 May 1992
RKR.O KWACHACA.M COCKARMMM.G MULI
1,553 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that when the law prescribes a specific procedure for a grievance, you must follow it and cannot use judicial review to bypass it.

What this practically means

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Executive summary

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This is an application under rule 5(2)(b) of the Court of Appeal Rules by the Speaker of the National Assembly seeking to stay orders of Shields J of May 20, 1992, granting James Njenga Karume leave to apply for certiorari to quash the Speaker's declaration of March 9, 1992 that the Kiambaa parliamentary seat was vacant following Karume's resignation from KANU and joining of the Democratic Party after the repeal of section 2A of the Constitution. The High Court had also directed that the grant of leave operate as a stay of the declaration. The Speaker argued that the Elections Act and the Constitution prescribed a specific procedure - an election petition - for challenging such a declaration, and that judicial review under order 53 could not bypass it; he further argued that the respondent had concealed the fact that he had already filed an election petition. The respondent conceded non-disclosure but relied on practical difficulties in constituting Election Courts. The Court of Appeal held that statutory procedures must be strictly followed and that practical difficulties could not justify circumventing them; that the non-disclosure of the pending petition was material; and that substantial points arose on the intended appeal with no prejudice to the respondent since a writ had to issue within four months in any event. The application was allowed and all the High Court orders of May 20, 1992 were stayed pending the intended appeal, with costs of the application in the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a stay of the orders of Shields J granting leave for judicial review and directing that leave operate as a stay of the Speaker's declaration should be granted pending appeal
  2. 2.Whether the respondent could bypass the constitutional and statutory procedure for challenging a declaration of vacancy under the Elections Act by invoking order 53 of the Civil Procedure Rules
  3. 3.Whether the respondent's non-disclosure of the pending election petition was a material non-disclosure affecting the judge's discretion

Key legal issues

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01

Exhaustion of statutory remedies before resorting to judicial review under order 53

Holding

The special circumstances alleged by the respondent (delay in constituting Election Courts) did not justify bypassing the statutory election petition procedure.

Reasoning

The court held that practical difficulties in the election petition process could not justify circumventing the procedure prescribed by the Constitution and the Elections Act. Order 53 could not oust clear constitutional and statutory provisions. The respondent had an alternative remedy through his pending election petition, and the statutory route had to be strictly followed.

p. 3
02

Material non-disclosure on ex parte application for leave to apply for judicial review

Holding

The respondent's failure to disclose the pending election petition in his statement of facts was a material non-disclosure capable of affecting the judge's exercise of discretion.

Reasoning

Counsel for the respondent conceded that the pendency of the election petition had not been disclosed. The court held this was material because full and frank disclosure is required on ex parte applications, and the omitted fact could have caused the judge to decline leave and/or the stay.

p. 5
03

Grant of stay under rule 5(2)(b)

Holding

The court was satisfied that substantial points arose on the intended appeal and that no prejudice would result to the respondent, justifying a stay.

Reasoning

Applying the rule 5(2)(b) thresholds, the court found substantial points to be raised and held that the respondent would suffer no prejudice because the Speaker was in any event obliged to issue the writ under section 13(2)(c) of the Elections Act within four months of the declaration's publication, so the stay caused no loss.

p. 5

Legal principles established

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  • Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed and cannot be circumvented by invoking judicial review.

Court orders

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  1. 1.Stay of all the orders made by the High Court on May 20, 1992, pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to be in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RK
majority
AC
majority
MM
majority
On appeal from
High Court of Kenya
Miscellaneous Civil Cause No 388 of 1992
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
p. 4exhaustion of statutory remedies
We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.
p. 5judicial review cannot override constitutional/statutory procedure
The application is allowed and we stay all the orders made by the High Court on May 20, 1992, pending the hearing and determination of the intended appeal as prayed for in the Notice of Motion dated May 22, 1992.
p. 5final orders - stay granted

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR)", Case Analysis (1992). Civil Application No. Nai. 131 of 1992 (rule 5(2)(b) application, Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1992/42/eng@1992-05-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.