Aga Khan Education Service Kenya v Republic Exparte Ali Seif & 3 others [2004] KECA 133 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once a judicial review application shows an arguable case, leave is granted, and revoking leave already given is extremely rare.
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 ex parte leave granted under Order 53 to the respondents could be set aside on AKESK's notice of motion, having regard to the principle that the jurisdiction to set aside leave already granted is exercised very sparingly and only in clear-cut cases.
- 2.Whether the respondents failed to show a prima facie case for leave because they did not identify the Minister's order or directive by its date, given the six-month limitation in section 9(3) of the Law Reform Act and Order 53 rule 2 of the Civil Procedure Rules.
- 3.Whether the varying terminology used in the leave documents — that the school be 'managed' by AKESK or that it be 'alienated' or 'privatised' — undermined the challenge sought to be quashed by certiorari.
- 4.Whether the statement of facts accompanying the chamber summons was so defective, lacking facts capable of verification by the 1st respondent's affidavit, that the grant of leave could not stand.
Key legal issues
#What is the test for the grant of leave under Order 53 and how far may the jurisdiction to set aside leave already granted extend?
Leave is to be granted where, on the material available and without going into the matter in depth, an arguable case is disclosed; ex parte leave is provisional and may be set aside on application, but only very sparingly and in clear-cut cases, such as where certiorari is patently out of time.
Both counsel were agreed on the principles, drawn from this Court's decision in Samuel Muchiri Wanjuguna, which approved Harbage: the leave stage is a filter, not a full hearing. Ex parte orders are provisional and can be set aside by the judge who granted them or, if he is unavailable, by any judge of the superior court. Following Fordham's Judicial Review Handbook, the court stressed that the power is 'very restricted', exercised only where the case is very clear-cut, and that anticipated difficulties of proof at the hearing are no ground for setting leave aside.
Whether the respondents' failure to identify the date of the Minister's order, given the six-month rule in section 9(3) of the Law Reform Act and Order 53 rule 2, meant there was no material on which leave could be granted.
No. Although the burden lies on the applicant for leave, where the material before the judge indicates the application was brought within six months, the judge may assume timeliness; if it turns out at the hearing of the substantive motion that six months had elapsed, the motion will then fail.
Section 9(3) of the Law Reform Act and Order 53 rule 2 forbid leave where the application is made later than six months after the decision sought to be quashed. The verifying affidavit placed the first disclosure of the Minister's decision on 20th December 2001, to take effect in January 2002, and leave was sought on 9th January 2002. The Minister, though represented by the Attorney General, never contended that six months had elapsed. Waki J's prima facie approach, that conclusive findings on limitation were unnecessary at that stage, was upheld.
Whether the shifting terminology in the leave documents — the school to be 'managed' by AKESK or 'alienated'/'privatised' — and the alleged defects in the statement of facts destroyed the arguability of the respondents' case.
No. What mattered was the substance of the challenge: that a public school would be converted into a private institution run by AKESK without consulting the parents, who alleged a right and legitimate expectation to be heard. The statement of facts, though poorly drafted, had substance capable of supporting leave.
The court held that variations in terminology across the chamber summons, statement of facts and verifying affidavit could not alter the basic position challenged — the removal of the school from the public to the private category. The existence and purport of the Minister's decision were undisputed. Parents with children in the school alleged they were entitled, or had a legitimate expectation, to be heard before the change of status; prima facie that was an arguable case even on the audi alteram partem point. The sufficiency of the facts was expressly reserved for the substantive hearing.
Whether the statement of facts supporting the chamber summons was so defective that leave should have been set aside.
The statement of facts could have been better drafted, but it was not devoid of substance; the judge considered it together with the verifying affidavit and decided to grant leave, and whether those facts ultimately sustain the case is a matter for the hearing of the motion itself.
This ground covered grounds 4 to 9 of the memorandum of appeal. The court drew a distinction between imperfect drafting and absence of substance: the statement and the verifying affidavit contained material on which the judge could exercise his discretion to grant leave. Whether those facts would suffice at the inter partes hearing of the substantive motion was expressly reserved as not a matter for this appeal. The consequence was that these grounds, like the earlier ones, failed and the appeal was dismissed with costs to the respondents.
Legal principles established
#- At the leave stage under Order 53, once an arguable case is disclosed on the material available, leave is to be granted and the court is not called upon to go into the matter in depth.
- The jurisdiction to set aside leave already granted ex parte is a very limited one, to be exercised very sparingly and only on very clear-cut cases.
- The burden lies on the applicant for leave to satisfy the judge that leave ought to be granted.
- If the judge who granted leave cannot sit, any other judge of the superior court is entitled to hear the application to set aside the grant of leave.
- At the leave stage, where the material indicates the application for judicial review was brought within the six-month period, the judge may assume timeliness; limitation is finally determined at the hearing of the substantive motion.
- The mere fact that an applicant may in the end have great difficulties in proving his case is no basis for setting aside leave already granted.
Court orders
#- 1.The appeal be and is hereby dismissed.
- 2.Costs of the appeal to the respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Appln. No. 13 of 2002
- Jurisdiction invoked
- Not expressly stated in the judgment; the matter came before the Court of Appeal as a civil appeal from the ruling and order of the High Court of Kenya at Nairobi (Waki J) dated 4th July 2003 in H.C. Misc. Appln. No. 13 of 2002.
Relief refused
#Setting aside of the ex parte leave granted to the respondents on 9th January 2002 to apply for an order of certiorari
Leave had properly been granted on an arguable case disclosed on the material; the jurisdiction to set aside ex parte leave is limited, sparingly exercised, and anticipated difficulties of proof at the hearing are no ground for setting it aside.
Discharge of the order that the leave granted operate as a stay of the Minister's order
It fell with the refusal to set aside the leave, as the appeal against Waki J's ruling was dismissed in its entirety.
Dismissal of the respondents' chamber summons of 9th January 2002 with costs
The court upheld the judge's conclusion that the respondents had an arguable case at the leave stage, including on their right or legitimate expectation to be heard before the school's change of status.
Costs
The appeal was dismissed with costs to the respondents: 'We order that the appeal be and is hereby dismissed with costs to the respondents.'
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.
We order that the appeal be and is hereby dismissed with costs to the respondents.
So once there is an arguable case, leave is to be granted and the court, at that stage, is not called upon to go into the matter in depth.
We would, however, caution practitioners that even though leave granted ex parte can be set aside on an application, that is a very limited jurisdiction and will obviously be exercised very sparingly and on very clear-cut cases
We agree with Mr Inamdar that the burden is on an applicant for leave to satisfy the judge that leave ought to be granted.
In those circumstances, Waki, J. was entitled to assume at the stage of leave that the respondents had gone for leave within the prescribed period.
The splitting of hairs in terminology is again not suitable at the stage of leave and I am not inclined to reverse my view of the matter on that ground either.
Unless the case is an obvious one, such as where an order of certiorari is being sought and it is clear to the court that the decision sought to be quashed was made more than six months prior to the applicant coming to court
Issues in the judgment
#The citation of R v Customs & Excise Commissioners, ex p. Eurotunnel Plc appears as [1957] CLC 392, which is anomalous against the surrounding 1989-1994 Administrative Law Reports quoted from the Judicial Review Handbook (3rd edn); this is likely a misprint for [1997], but the year is reproduced here as printed in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (7)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v Director General, National Environmental Management Authority & 3 others; Maasai Mara Lemek Landowners Conservancy Limited & another (Exparte Applicants) (Environment and Land Judicial Review Case E002 of 2024) [2024] KEELC 5096 (KLR)[2024] KEELC 5096 (KLR)4 Jul 2024
- Republic v Land Registrar Trans-Nzoia County & another Ex-parte Turbo Munyaka Co-operative Society Ltd & 4 others [2017] KEELC 469 (KLR)[2017] KEELC 469 (KLR)20 Dec 2017
- John Macharia Gichigi v Commissioner of Police (Civil Appeal 70 of 2015) (Civ) [2017] KECA 188 (KLR)[2017] KECA 188 (KLR)17 Nov 2017applied
- Republic v Attorney General & another ex-parte Kidzizi Properties Limited & 2 others [2017] KEELC 2926 (KLR)[2017] KEELC 2926 (KLR)12 May 2017applied
- Republic v Chairman -National Land Commission Lamu District Land Adjudication and Settlement Officer Ex-Parte Mohamed A. Haron [2014] KEELC 301 (KLR)[2014] KEELC 301 (KLR)20 Jun 2014applied
- Mary Wairimu Gikunju v Republic & 3 others [2014] KECA 666 (KLR)[2014] KECA 666 (KLR)26 Feb 2014applied
- Nakumatt Holdings Limited v Commissioner of Value Added Tax [2011] KECA 295 (KLR)[2011] KECA 295 (KLR)8 Apr 2011followed
Cite this brief
#Cite this brief
Caselaw, "Aga Khan Education Service Kenya v Republic Exparte Ali Seif & 3 others [2004] KECA 133 (KLR)", Case Analysis (2004). Civil Appeal No. 257 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/133/eng@2004-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.