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Court of AppealDismissedCivil Appeal 244 of 2006· [2007] KECA 29 (KLR)

ZAKHEM CONSTRUCTION (KENYA) LIMITED v PERMANENT SECRETARY, MINISTRY OF ROADS & PUBLIC WORKS & another [2007] KECA 29 (KLR)

Court of Appeal of Kenya
15 February 2007
ROR.S.C. OmoloEOE.O. O'KubasuPWP.N. Waki
2,205 words in judgment
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The bottom line

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Disputes over a terminated government contract belong in breach-of-contract claims or arbitration, not judicial review, Kenya's Court of Appeal has ruled.

What this practically means

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Executive summary

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The Court of Appeal (Omolo, O'Kubasu and Waki, JJA) dismissed this appeal against Emukule J's refusal of leave to apply for judicial review to quash a 14-day contract termination notice issued by the Ministry of Roads and Public Works. The appellant first complained that the judge had no jurisdiction to order service and an inter partes hearing because Order 53 rule 1(2) requires the leave application to be made ex parte. Rejecting this, the court held that although the prima facie reading supports counsel's submission, Shah v Resident Magistrate, Nairobi and O'Reilly v Mackman establish a judicial discretion to adjourn the whole leave application for hearing inter partes; counsel also conceded no prejudice arose. On the substantive ground, the court held that the dispute was purely contractual: the parties had a written contract with specified termination terms, an arbitration clause, and a Clause 44.1 on extension of time. Breach of such provisions is breach of contract, and the remedy lies in private law - damages or arbitration - not in public law, unless the parties expressly provide for judicial review in the contract. The court acknowledged anxiety that the judge refused leave without hearing the parties despite ordering an inter partes hearing, but found no prejudice given the correctness of the outcome. The appeal was dismissed with costs to the Respondents; the decision below was affirmed.

Key legal issues

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01

Jurisdiction to hear an application for leave to apply for judicial review inter partes

Holding

Order 53 rule 1(2) on its prima facie reading requires an ex parte hearing, but the court retains discretion to adjourn the whole application for leave for hearing inter partes, following Shah v Resident Magistrate and O'Reilly v Mackman.

Reasoning

The court distinguished adjourning part of an application (as in Shah, where the stay issue was postponed) from adjourning the whole application, which Shah and O'Reilly v Mackman permit. Counsel conceded no prejudice was occasioned by the inter partes direction. Grounds 1 and 3 therefore failed.

p. 4
02

Availability of judicial review for breach of a government construction contract

Holding

Disputes arising under a written contract, including termination and extension-of-time provisions, sound in private law; judicial review provides no remedy unless the contract expressly stipulates for it.

Reasoning

The contract contained its own provisions, including an arbitration clause and Clause 44.1 on extension of time. Breach of such clauses is breach of contract, remediable in damages, not in public law. The court held parties may expressly contract for judicial review but nothing in Clause 44.1 implied a duty to hear before termination. Emukule J's refusal of leave was accordingly correct.

p. 4
03

Refusal of leave without hearing the parties despite an inter partes direction

Holding

Although this occasioned the court anxiety, the failure to hear the parties caused no prejudice because the matter plainly lay in contract.

Reasoning

The judge had ordered an inter partes hearing but then struck out the application without hearing either counsel. The appellate court noted this procedural anomaly but held it was not prejudicial since the substantive conclusion (contract, not public law) was manifestly correct.

p. 4

Legal principles established

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  • A judge has discretion to adjourn the whole application for leave to apply for judicial review for hearing inter partes; Order 53 rule 1(2)'s ex parte provision does not oust that discretion.
  • Breach of a government contract, and disputes over its termination, must be pursued in private law (including the agreed arbitration or a claim for damages), not by judicial review.

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondents

Authorities

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Legislation

  • Law Reform Actsection 8(2)
  • Civil Procedure RulesOrder 53 rule 1(1), 1(2)

Cases cited (3)

  • Shah v Resident Magistrate, Nairobi
    [2000] EA 208
  • O'Reilly v Mackman & Others
    [1982] 3 All E.R 1124
  • Republic v Commissioner of Co-operatives
    [1997] LLR 2227 (CAK)
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Application No. 612 of 2006
Jurisdiction invoked
First appellate jurisdiction over an appeal from the High Court (Law Reform Act, Cap 26, section 8(2) judicial review proceedings; Order 53 Civil Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "ZAKHEM CONSTRUCTION (KENYA) LIMITED v PERMANENT SECRETARY, MINISTRY OF ROADS & PUBLIC WORKS & another [2007] KECA 29 (KLR)", Case Analysis (2007). Civil Appeal 244 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/29/eng@2007-02-15

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