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Court of AppealAllowedCivil Appeal No. 310 of 2009

Tom Mbaluto v Jessie Lesiit, Hannah Okwengu, Jackton Ojwang, Festus Azangalala & Luka Kimaru [2012] KECA 242 (KLR)

Court of Appeal of Kenya
3 February 2012
SBS. E. O. BosireEOE. O. O'KubasuAVAlnashir Visram
5,122 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that judges seeking leave for judicial review only need an arguable case, not a full hearing, and courts can overlook filing format defects.

What this practically means

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Executive summary

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This appeal arose from a ruling of Wendoh, J in the High Court dismissing, and striking out, Tom Mbaluto's ex parte chamber summons seeking leave to apply for orders of certiorari quashing the decision of a presidential Tribunal of Inquiry (constituted under the then Constitution) which had recommended his removal from office as a Judge of the High Court for misbehaviour. The Tribunal had found, among other things, that the appellant received a bribe in Kisii High Court Civil Case No. 10 of 1990 and that the appropriate standard of proof was one higher than balance of probabilities but lower than beyond reasonable doubt. The High Court struck out the application on formal grounds: it was improperly intituled in the name of the Republic at the leave stage, and the Judge held the appellant should have come by constitutional application, declining to examine the merits. Allowing the appeal, the Court of Appeal held that leave is a prerequisite to judicial review and exists to filter out frivolous applications; at the leave stage the court must determine only, without going into depth, whether an arguable case exists. The High Court Judge erred by making final findings on the merits and on the Tribunal's jurisdiction, issues which were certainly arguable. Although the chamber summons did not comply with the civil procedure rules on format, the Court invoked Article 159 of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act to overlook the defect, set aside the High Court order, and granted leave itself, allowing the appellant 21 days to file his substantive motion, with costs of the appeal to the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge exercised her discretion judicially in declining leave for judicial review and striking out the chamber summons
  2. 2.Whether the Judge erred in hearing the leave application inter-partes and pronouncing on the merits at the leave stage
  3. 3.Whether the alleged defect in the form and intitulment of the chamber summons rendered the application incompetent

Key legal issues

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01

Test for granting leave to apply for judicial review

Holding

Leave should be granted if, on the material then available and without going into the matter in depth, the court considers there is an arguable case for the relief sought.

Reasoning

The court adopted Halsbury's Laws of England test as approved in Re: Samuel Muchiri W'Njuguna and Republic vs Communications Commission of Kenya. The High Court Judge went beyond this test, made final conclusions on jurisdiction and merits at the leave stage, and struck out the application on technicalities. The Court of Appeal held the material raised serious and weighty arguable issues, especially on the Tribunal's jurisdiction, and that leave ought to have been granted.

p. 8
02

Error of the High Court in pronouncing on merits at leave stage

Holding

The Judge erred by making final conclusions on a matter not yet heard, including on the supervisory jurisdiction of the High Court over the Tribunal.

Reasoning

The leave stage is a filter, not a full hearing. The Judge heard the application inter-partes, made final findings on constitutional questions and on competency, and refused to consider the merits. The Court of Appeal held this exceeded the narrow scope of the leave inquiry and that the issues raised, particularly the Tribunal's jurisdiction, were certainly arguable points.

p. 8
03

Defect in form of the chamber summons and the overriding objective

Holding

The non-compliance of the chamber summons with civil procedure rules did not defeat the application; the defect was overlooked under Article 159 and sections 3A and 3B of the Appellate Jurisdiction Act.

Reasoning

The High Court had struck out the application as incompetent and improperly intituled, relying on Farmers Bus Service and Welamondi. The Court of Appeal, applying the constitutional imperative of substantive justice, granted leave notwithstanding the format defect and exercised its own jurisdiction to grant the leave which the High Court ought to have granted.

p. 8

Legal principles established

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  • At the leave stage of a judicial review application, the court must determine only, without going into depth, whether there is an arguable case; it must not make final findings on the merits.
  • Leave is a prerequisite to a substantive judicial review application and exists to filter out frivolous applications; its grant is a judicial discretion interferable with only on Mbogo v Shah principles.
  • A court may overlook a defect in the form of a judicial review chamber summons in the interest of substantive justice under Article 159 of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act.

Court orders

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  1. 1.Order of the learned Judge dismissing the appellant's application for leave set aside and substituted with an order granting leave as prayed for in the chamber summons dated 30th October, 2008
  2. 2.Appellant granted 21 days from the date of the judgment to file his motion for orders of judicial review
  3. 3.Appellant awarded the costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SB
majority
EO
majority
AV
majority
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Appl. No. 666 of 2008
Jurisdiction invoked
Appellate jurisdiction over the High Court ruling; court invoked Article 159 of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act to cure the defect in form of the chamber summons

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

All that the learned Judge was required to do at the stage of application for leave, was to determine, without going into any depth, whether there was an arguable case for granting the relief sought.
p. 8Scope of inquiry at leave stage
The leave of the court is a prerequisite to making a substantive application for judicial review. The purpose of the leave is to filter out frivolous applications.
p. 7Purpose of leave requirement
Accordingly, the order we make is that we set aside the order of the learned Judge dismissing the appellant's application for leave and substitute it with an order granting leave as prayed for in the chamber summons dated 30th October, 2008. The appellant shall have 21 days from the date hereof to file his motion for orders of judicial review. The appellant shall have the costs of this appeal.
p. 8Final orders and disposition

Issues in the judgment

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minor

The judgment refers to the High Court ruling author inconsistently: 'the learned Judge' is described with feminine pronouns ('Here is how she delivered herself') while the coram names Wendoh, J; the grounds of appeal also refer inconsistently to sections 65(2) and 69(2) of the Constitution for the Tribunal's constituting provision.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Tom Mbaluto v Jessie Lesiit, Hannah Okwengu, Jackton Ojwang, Festus Azangalala & Luka Kimaru [2012] KECA 242 (KLR)", Case Analysis (2012). Civil Appeal No. 310 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/242/eng@2012-02-03

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