Republic v Attorney General & 15 others Ex-Parte Kenya Seed Company Limited & 5 others [2010] KECA 23 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the Government lawfully reconstituted Kenya Seed Company's management because the company was, in substance, a State Corporation.
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 substantive notice of motion for judicial review was a nullity because leave was not validly granted, and whether section 99 of the Civil Procedure Act applies to judicial review proceedings
- 2.Whether Kenya Seed Company Limited was a State Corporation at the time of the orders of the President and the Minister for Agriculture
- 3.Whether the purported 1994 presidential exemption from the State Corporations Act was valid
- 4.Whether the conditions for grant of orders of certiorari, mandamus and prohibition were satisfied
Key legal issues
#Validity of leave and applicability of section 99 of the Civil Procedure Act to judicial review proceedings
The order made by Tanui J on 31 December 2003, though imperfectly worded, granted leave; the correction of 12 January 2004 under section 99 was valid, took effect retrospectively from the original date, and section 99 applies to judicial review proceedings.
The application before Tanui J was expressly for leave under Order 53 rule 1(1), and counsel's submissions laid the basis for leave. The words of the order made no sense and cried out for correction. Section 99 is a codification of the common law slip rule, operates as part of the court's inherent jurisdiction, and applies in all civil courts; Order 53 was itself enacted under section 81 of the Civil Procedure Act. The correction went back to the date of the original order and gave effect to the Judge's intention, evidenced by the grant of stay operating pursuant to leave. The Kunste case was of little relevance as it did not deal with the Civil Procedure Act.
Whether KSC was a State Corporation
Up to the contested 2001 floatation of new shares, KSC was in all probability a State Corporation, being a subsidiary of ADC and controlled by a State Corporation; the President and the Minister were therefore legally entitled to act.
ADC, a wholly Government-owned statutory body, held 53% of KSC's equity, making KSC a subsidiary of a State Corporation under section 154(1) of the Companies Act and thus a State Corporation under section 2(b) and 2(d) of the State Corporations Act. The company's own conduct, board minutes, AGM explanations, subjection of accounts to the Public Accounts Committee and reliance on Government approval for share issues all acknowledged that status. The floatation of 2001 without ministerial approval and Treasury concurrence under section 11(2) precipitated the dispute, but for purposes of the public-law remedies sought the court found no basis for faulting the respondents.
Validity of the purported 1994 presidential exemption
The purported exemption by Legal Notice No. 495/94 was a nullity and of no legal consequence; the President had no power of exemption under the Act as then constituted.
Section 2 of the Act, invoked in the notice, is merely the interpretation section and confers no power to exempt. The express power to exempt was only introduced by section 5A of Act No. 2/02 amending the original Act. Before that amendment the President could only declare by Gazette notice that a body corporate was not a State Corporation, and no such lawful declaration existed. In any event, KSC continued to act as a State Corporation in its correspondence, deeds and conduct even after the purported exemption.
Whether the discretionary judicial review remedies should issue
Certiorari, prohibition and mandamus were all properly refused; the superior court's conclusions on the three prayers were agreed with.
Certiorari would not issue because on a balance of probability KSC was a State Corporation and the Presidential and Ministerial appointments had legal basis. Prohibition is directed at preventing future action and is powerless against a decision already made. Mandamus compels performance of a public duty and the Companies Act imposed no duty on the Minister which he had failed to perform. The shareholding disputes within the company could be fought in other, more appropriate fora, the present application being in the realm of public law seeking discretionary remedies.
Legal principles established
#- Section 99 of the Civil Procedure Act (the slip rule) applies to judicial review proceedings and permits correction of an accidental slip at any time, provided the correction gives effect to the intention of the court and does not go to the substance of the judgment or order.
- Correction under the slip rule is impermissible where it would amount to the court sitting on appeal on its own decision, redoing the case, exercising an independent discretion, or altering the substance of the order.
- A company incorporated under the Companies Act which is controlled by a State Corporation, or which is a subsidiary of a State Corporation, falls within the definition of a State Corporation under section 2 of the State Corporations Act.
- The power to exempt bodies from the State Corporations Act was only introduced by section 5A of Act No. 2/02; prior to that amendment the President had no lawful power to exempt, and a purported exemption was a nullity void ab initio.
Court orders
#- 1.The appeal is dismissed
- 2.The ex parte appellants shall bear two thirds of the costs, both in the Court of Appeal and in the court below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Eldoret
- Kitale H.C.Misc. Appl. No. 1 of 2004
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court exercising judicial review jurisdiction (Order 53, Civil Procedure Rules; Law Reform Act, Cap 26)
Relief refused
#Order of certiorari to quash the Government's decision of 17.12.2003 appointing new management of Kenya Seed Company Limited
KSC was in all probability a State Corporation and there was legal basis for the actions of the President and the Minister for Agriculture
Orders of prohibition against the Government, the Minister and the appointees
Prohibition is powerless against a decision already made
Order of mandamus to compel the Government and Minister for Agriculture to observe the Companies Act and the company's Memorandum and Articles
The Companies Act imposes no duties on the Minister which he failed to perform
Costs
The ex parte appellants shall bear two thirds of the costs, both here and in the court below.
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.
What is certainly not permissible in the application of section 99, is to ask the court to sit on appeal on its own decision, or to redo the case or application, or where the amendment requires the exercise of an independent discretion, or if it involves a real difference of opinion, or requires argument and deliberation or generally where the intended corrections go to the substance of the judgment or order.
It did not matter when that correction was sought or made since section 99 provides for “any time” and is not confined to amendments or corrections prior to perfection of the judgment or order.
To that extent, we find little, if any, relevance to the application of the Kunste Case as it did not deal with the provisions of CPA.
But it was controlled by ADC and was therefore a State Corporation. It would also be a State Corporation because it was a subsidiary of a State Corporation.
In my opinion, the said ‘exemption’ was a nullity, and of no legal consequence, and thus void ab initio.
The net result of our decision is that this appeal must fail despite the partial success by the ex parte appellants on one ground. We order that it be and is hereby dismissed, but the ex parte appellants shall bear two thirds of the costs, both here and in the court below.
Issues in the judgment
#The coram states the High Court judgment was dated 6th April, 2005, but the body of the judgment twice states the decision was made on 6th April, 2006, creating an internal date inconsistency.
The formal order extracted from Tanui J's ruling differed from the ruling as made, a discrepancy the court itself had to resolve through the slip rule; the extracted order was initially treated as a nullity by the court below.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & 15 others Ex-Parte Kenya Seed Company Limited & 5 others [2010] KECA 23 (KLR)", Case Analysis (2010). Civil Appeal No. 137 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/23/eng@2010-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.