Republic v Communications Commission of Kenya (As successor to Managing Director Kenya Posts & Telecommunications Corporation and Kenya Posts & Telecommunications); East Africa Television Network Limited (Ex parte Applicant) (Civil Appeal 175 of 2000) [2001] KECA 353 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that judicial review cases cannot be struck out for missing a statutory notice period, and confirmed the correct procedure for starting them.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether grounds specifically rejected by the judge below can be raised on appeal by way of a notice of grounds for affirming the decision under rule 91 of the Court of Appeal Rules
- 2.Whether an application for leave to apply for judicial review under order 53 rule 1(2) must be instituted by chamber summons, originating summons or notice of motion
- 3.Whether order 6 rule 13(1)(b) of the Civil Procedure Rules applies to striking out proceedings instituted under order 53
- 4.Whether the one-month notice requirement in section 109(a) of the Kenya Posts & Telecommunications Corporation Act applies to judicial review proceedings under order 53
- 5.Whether there is a distinction between a claim against the Managing Director of KP&TC and one against the Corporation itself
Key legal issues
#Procedure for instituting an application for leave under order 53
The application for leave must be made ex parte to a judge in chambers; it cannot be by motion (heard inter partes in open court) or by originating summons (which cannot be fully determined ex parte). The long-standing practice of chamber summons is correct and should not be disturbed.
Order 53 rule 1(2), made pursuant to section 9 of the Law Reform Act, requires the leave application to be made ex parte to a judge in chambers. Order 50 motions are heard inter partes in open court, directly opposed to order 53. Originating summonses under order 36 cannot be heard ex parte and the Law Reform Act is not listed there. The thirty-year practice of chamber summons is well established and no prejudice was shown.
Applicability of section 109(a) notice requirement to judicial review
Section 109(a) of the KP&TC Act requiring one month's notice before commencing action does not apply to judicial review proceedings under order 53; Githinji, J was wrong to strike out the motion on that ground.
Sections 8 and 9 of the Law Reform Act govern certiorari, prohibition and mandamus and are not made subject to any other written law; section 109(a) is not expressed to apply notwithstanding other written laws. Judicial review under order 53 concerns the decision-making process, not the merits of a claim, so the statutory notice provision is inapplicable. Counsel for the respondent ultimately conceded this.
Raising rejected grounds via notice to affirm under rule 91
A respondent may not use a notice of grounds for affirming the decision to resurrect grounds the judge specifically rejected; only an appeal or cross-appeal lies against such rejection.
Rule 91 permits a respondent to contend the decision should be affirmed on grounds other than or additional to those relied on below. But grounds the judge dealt with and rejected were not 'additional' grounds; challenging their rejection requires an appeal or cross-appeal under rule 90(1). Without a proper appeal on those grounds, the Court of Appeal has no jurisdiction to vary or reverse the judge on them.
Distinction between suit against Corporation and its Managing Director
There is no distinction: the Managing Director acted for the Corporation both in releasing and withdrawing the frequencies, and any court order binds both alike.
Both the release and withdrawal letters were written on the Corporation's letterheads; the Managing Director was plainly acting for the Corporation. An order of the court would bind the Corporation just as much as the Managing Director. The appellant's attempt to differentiate was correctly rejected as splitting hairs.
Applicability of order 6 rule 13(1)(b) to order 53 proceedings
The Court doubted whether any provision of order 6 rule 13(1) applies to proceedings instituted under order 53, noting leave had already been granted and the proper challenge to leave is an application to set it aside.
The respondent sought to strike out the notice of motion as scandalous, frivolous or vexatious under order 6 rule 13(1)(b), yet the proceedings had been instituted pursuant to leave granted by Mbogholi, J. It is inconceivable leave would be granted if the complaints were merely frivolous; the appropriate procedure for challenging leave is an application under the court's inherent jurisdiction to the judge who granted it.
Legal principles established
#- An application for leave to apply for judicial review under order 53 rule 1(2) must be made ex parte to a judge in chambers and cannot be commenced by notice of motion or originating summons; the established practice of using chamber summons is correct
- Judicial review proceedings under order 53 are originated by the notice of motion filed pursuant to leave, not by the chamber summons application for leave
- The notice-of-intention-to-sue requirement in section 109(a) of the KP&TC Act does not apply to judicial review proceedings commenced under order 53, since sections 8 and 9 of the Law Reform Act are not made subject to any other written law
- A respondent cannot, under rule 91 of the Court of Appeal Rules, seek to affirm a decision on grounds the judge below specifically considered and rejected; such grounds may only be pursued by appeal or cross-appeal
- Leave for judicial review should be granted where, on the material available and without going into depth, the court considers there is an arguable case; the proper challenge to leave is by application to set it aside before the judge who granted it
Court orders
#- 1.Appeal allowed
- 2.Orders of Githinji, J striking out the appellant's notice of motion dated 23rd April 1998 set aside
- 3.Substituted order dismissing the respondent's chamber summons dated 27th May 1998
- 4.Each party to bear their own costs in the superior court
- 5.Each party to bear their own costs in the appeal
- 6.The appellant's notice of motion dated 23rd April 1998 to proceed to hearing before a judge other than Githinji, J
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Appeal against an interlocutory order of the High Court in judicial review proceedings, under the Court of Appeal Rules
Relief refused
#Affirmation of the decision below on grounds rejected by the judge
Grounds specifically rejected by a judge cannot be raised to affirm the decision under rule 91; only an appeal or cross-appeal can challenge such rejection
Costs
Each party shall bear their own costs in the superior court, and similarly their own costs in this appeal
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.
In the event, we allow the appeal, set aside the orders made by Githinji, J striking out the appellant's notice of motion dated 23rd April, 1998 and substitute those orders with an order dismissing the respondent's chamber summons dated 27th May, 1998.
We further order that each party shall bear their own costs in the superior court, and similarly their own costs in this appeal.
The appellant's notice of motion dated 23rd April, 1998 shall proceed to hearing according to law before a judge other than Githinji, J.
we have no hesitation in saying that an application for leave under order 53 rule 1 (2) cannot possibly be made by way of a notice of motion or an originating notice of motion
section 109 (a) of the KP & TC Act cannot apply to proceedings commenced under order 53 of the Civil Procedure Rules
grounds which have been specifically rejected by a judge cannot again be raised to support or afirm a decision under rule 91
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Communications Commission of Kenya (As successor to Managing Director Kenya Posts & Telecommunications Corporation and Kenya Posts & Telecommunications); East Africa Television Network Limited (Ex parte Applicant) (Civil Appeal 175 of 2000) [2001] KECA 353 (KLR)", Case Analysis (2001). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/353/eng@2001-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.