Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 42 of 1994· [1998] KECA 27 (KLR)

Matiba v Attorney General (Civil Appeal 42 of 1994) [1998] KECA 27 (KLR)

Court of Appeal
13 November 1998
JGJ. E. GicheruPhilip Kiptoo TunoiP. K. TunoiALA. A. Lakha
1,019 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that a judge cannot decide a contested request without hearing both sides, and froze the government's ban on Matiba's book.

What this practically means

#

Executive summary

#
The appellant, a former cabinet minister and presidential contender, authored and published a book titled 'Kenya Return to Reason' in early 1993, circulating free copies to senior state officers. On 14th January 1994 the Minister of State, acting under section 52 of the Penal Code (Cap 63), prohibited the publication through Legal Notice No. 2 of 1994. The appellant applied for leave to apply for judicial review, seeking certiorari to quash the prohibition and asking that the grant of leave operate as a stay. On 24th January 1994 Pall, J granted leave but directed that the order would not operate as a stay. The appellant appealed, contending that the judge refused the stay without affording counsel an opportunity to make representations. The Court of Appeal (Gicheru, Tunoi and Lakha, JJ.A.) examined the record of proceedings, which showed the order but no record of submissions, and inferred that the order was made in counsel's presence but without hearing him. The court held that the opportunity to be heard is a cardinal principle of natural justice and that an order flowing from a fundamental breach of that rule cannot be sustained. The appeal was allowed, the Minister's prohibition order was stayed pending the hearing and disposal of the certiorari application in the High Court, and the appellant received the costs of the appeal. The court declined to determine the remaining grounds of appeal, though it observed they appeared persuasive. It also noted the Attorney-General's repeated non-attendance despite due service. The judgment is a single judgment of the whole court.

Key legal issues

#
01

Whether the refusal of a stay without hearing counsel violated natural justice

Holding

Yes. The High Court judge made the order refusing a stay in the presence of counsel but without affording him an opportunity to address the court, breaching the audi alteram partem rule.

Reasoning

The court examined the record of proceedings before Pall, J, which contained the order but no record of submissions by Mr Kariuki. It inferred that the order was made without hearing counsel. Since the opportunity to be heard is a cardinal principle of natural justice, the resulting order could not be sustained on appeal, and the appeal was allowed on that ground alone.

p. 2
02

Whether a stay of the prohibition order should issue pending the certiorari application

Holding

Yes. Having found the natural justice breach, the court stayed the Minister's prohibition order pending the hearing and disposal of the certiorari application in the High Court.

Reasoning

The appellant had argued that a stay should have been ordered during the pendency of the judicial review case. Because the refusal of the stay was tainted by the breach of natural justice, the Court of Appeal itself granted the stay, preserving the position until the High Court determined the substantive certiorari application.

p. 3

Legal principles established

#
  • A judicial officer may not determine a contested prayer, including a prayer that leave to apply for judicial review not operate as a stay, without affording the affected party a fair opportunity to be heard; an order made in breach of the audi alteram partem rule cannot stand.
  • An appellate court cannot sustain any order that flows from a fundamental breach of natural justice.

Court orders

#
  1. 1.The appeal is allowed
  2. 2.The order of the Minister of State made on 14th January, 1994 is stayed pending the hearing and disposal of the application for the order of certiorari in the High Court
  3. 3.The appellant is awarded the costs of the appeal

Authorities

#

Legislation

  • Penal CodeSection 52
  • Constitution of KenyaSection 79
  • Civil Procedure RulesOrder 53 rule 1(2)
  • Civil Procedure RulesOrder 53
  • Law Reform Act
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Cause No. 60 of 1994
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court's decision on an application for leave to apply for judicial review under Order 53 of the Civil Procedure Rules and the Law Reform Act (Cap 26)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Matiba v Attorney General (Civil Appeal 42 of 1994) [1998] KECA 27 (KLR)", Case Analysis (1998). Civil Appeal No. 42 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/27/eng@1998-11-13

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