Kariuki v Attorney General (Civil Appeal 70 of 1991) [1992] KECA 46 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that even an 'absolute' discretion given to a public official can be challenged in court if it affects your legal rights unfairly.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court erred in going into the full merits of the substantive application when determining an application for leave to apply for orders of certiorari and mandamus
- 2.Whether the appellant demonstrated a prima facie case on his application for leave, having alleged breach of the rules of natural justice by the Attorney-General
- 3.Whether the Attorney-General's 'absolute discretion' under section 11(1) of the Advocates Act is subject to judicial review
Key legal issues
#Whether absolute statutory discretion is exempt from judicial review
Discretion under section 11(1) of the Advocates Act, though described as 'absolute', is subject to judicial review where its exercise affects a person's legal rights or interests.
The court adopted the reasoning of Lord Scarman in the GCHQ case and Lord Diplock in Attorney General v Ryan: the controlling factor is the subject matter, not the source of the power. A discretion affecting legal rights is judicial in character even if administrative in nature, and must be exercised fairly in accordance with natural justice. Parliament is presumed not to authorise exercise of power in breach of natural justice.
Whether the High Court should have gone into merits at the leave stage
The learned Judge erred by rejecting the appellant's complaints on their merits when determining an application for leave; at that stage merit is not the issue.
Once the appellant alleged breach of the rules of natural justice, the judge should have paused, as that was a point fit for further investigation on a full inter partes basis with evidence and argument. Applying Lord Scarman's test in the National Federation case, the question at leave stage is whether a prima facie case on reasonable grounds has been shown; the appellant's unrebutted allegations satisfied that test.
Legal principles established
#- The exercise of an 'absolute' statutory discretion that affects the legal rights or interests of a person is justiciable and subject to judicial review; absolute discretion does not oust review.
- A decision arrived at by a procedure offending the principles of natural justice is outside the jurisdiction of the decision-making authority.
- On an application for leave to apply for judicial review, the court must not determine the merits; where a breach of natural justice is alleged, that allegation is fit for further investigation at an inter partes hearing and, if unrebutted, discloses a prima facie case warranting leave.
Court orders
#- 1.Appeal allowed
- 2.Order of the High Court dismissing the appellant's application for leave set aside
- 3.Appellant granted leave to apply for the writs of certiorari and mandamus
- 4.Appellant awarded costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Section 3(2) of the Appellate Jurisdiction Act, Chapter 9 of the Laws of Kenya
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly we allow this appeal; set aside the order of the High Court dismissing the appellant's application as mentioned above; and pursuant to the provisions of section 3(2) of the Appellate Jurisdiction Act, supra, order that the appellant be, and is hereby granted leave to apply for the writs of certiorari and mandamus.
It is not the absoluteness of the discretion nor the authority exercising it that matter but whether in its exercise, some of the person's legal rights or interests have been afiected.
It is however, quite clear that it is not within the powers of the Act to depart from the principles of natural justice when discretion is being exercised under this subsection.
In truth, once the appellant alleged a breach of the rules of natural justice, the learned Judge should have paused there: for clearly that was a point fit for further investigation.
Without a rebuttal to these allegations, the appellant certainly disclosed a prima facie case.
Issues in the judgment
#Coram lists no named author; judgment appears to be a single judgment of the court, though the signature block suggests Gicheru JA may have drafted it
The case number of the appeal is not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Attorney General (Civil Appeal 70 of 1991) [1992] KECA 46 (KLR)", Case Analysis (1992). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1992/46/eng@1992-04-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.