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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 50 of 2012· [2014] KECA 119 (KLR)

Kenya Sugar Board v Republic & 2 others

Court of Appeal
21 February 2014
6,085 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld an order forcing the Kenya Sugar Board to refund Kshs. 87.8 million in bid money, ruling public bodies cannot hide behind technicalities.

What this practically means

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Executive summary

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The Kenya Sugar Board (KSB) appealed against an order of mandamus granted by Gacheche J. on 4th April 2011 compelling it to refund Kshs.87,837,000/= in bid monies paid by Commodity House Ltd and Stuntwave Ltd for rights to import duty-free COMESA sugar at a lawful public auction held in August 2009. KSB thereafter organised a second, non-competitive auction for the same quota, which the High Court found to be illegal and irrational and prejudicial to the successful bidders of the first auction. Although KSB resolved to refund the monies, it withheld payment on the strength of non-binding opinions from the Treasury and the Ministry of Agriculture. Before the Court of Appeal, KSB argued that the record of appeal having been filed out of the extended time the appeal was incompetent; that the failure to join the Treasury, the Ministry and the Attorney General vitiated the judicial review proceedings; and that the dispute was contractual and not amenable to judicial review. The Court rejected all three contentions. It held that the Rule 84 objection was waived for want of a timely application and that striking out on a technicality would offend Article 159 and the overriding objective. Non-joinder was a discretionary, curable irregularity. KSB, as a public body exercising statutory functions, was properly subject to judicial review, which is available irrespective of alternative remedies, and its conduct was tainted with illegality, irrationality and bad faith, entitling the respondents to mandamus. The appeal was dismissed in its entirety with costs to the appellant.

Key legal issues

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01

Competence of the appeal where the record was filed out of the extended time

Holding

The objection to competence failed because no application under Rule 84 was made within thirty days and the right was waived; the court would not strike out on a technicality in light of Article 159 and the overriding objective

Reasoning

Rule 84 invites an affected party to apply to strike out an appeal filed out of time, but that application must be made within thirty days. No such application was made. Rule 104(b) bars a respondent from raising, at the hearing without leave, a competence objection that could have been raised under Rule 84. The court was also slow to strike out given the constitutional and statutory preference for determining disputes on the merits.

p. 7
02

Effect of non-joinder of the Treasury and the Ministry in the judicial review proceedings

Holding

The non-joinder did not vitiate the proceedings: Order 53 rule 4 is discretionary, neither body sought to be joined, and KSB, which knew of their positions, alone could have sought their joinder

Reasoning

The joinder power under Order 53 rule 4 is discretionary and could only be exercised on reason, not caprice. The exchanges between KSB, the Treasury and the Ministry were unknown to CHL and SL when they filed. A statutory body with corporate independence under the Sugar Act bore sole responsibility for resolving the refund claim. Non-joinder is a curable irregularity in proceedings that are sui generis.

p. 9
03

Amenability of the dispute to judicial review notwithstanding its arguably contractual character

Holding

The claim was amenable to judicial review because KSB is a public body acting under statutory mandate, and judicial review is available regardless of the existence of alternative remedies

Reasoning

Judicial review is concerned with the decision-making process, not the merits, but its grounds have expanded beyond the three classical grounds to include bad faith, abuse of power and legitimate expectation. KSB exercised a statutory function in allocating duty-free sugar importation rights fairly and transparently; its conduct was tainted with illegality and irrationality, and it conceded unfairness by resolving to refund. The Treasury's opinion was not binding on KSB.

p. 10
04

Whether mandamus properly issued to compel the refund

Holding

Mandamus properly issued because KSB was under a specific legal duty to refund the undisputed sums and the delay lay at KSB's door

Reasoning

Citing Halsbury's Laws and the Gathenji decision, mandamus commands a party to do what it is legally bound to perform and lies where there is a specific legal right and no equally convenient remedy. KSB had resolved to refund but took refuge behind a non-binding Treasury opinion; its actions lacked good faith and proper exercise of power, justifying the order.

p. 10

Legal principles established

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  • A respondent who fails to apply under Rule 84 of the Court of Appeal Rules within thirty days to strike out an appeal filed out of time is deemed to have waived the right, and cannot raise the objection at the hearing without leave under Rule 104(b)
  • Non-joinder or misjoinder of parties in judicial review proceedings is an irregularity that does not go to the substance and is curable by amendment
  • Actions of a statutory public body exercised in the course of its statutory mandate are amenable to judicial review notwithstanding that a contractual element may exist, since judicial review is not subject to the absence of an alternative remedy
  • The grounds of judicial review of illegality, irrationality and procedural impropriety have expanded, including to bad faith, abuse of power, relevant/irrelevant considerations and legitimate expectation

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The costs of the appeal shall be borne by the appellant
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. C. No. 249 of 2010
Jurisdiction invoked
First appeal under the Appellate Jurisdiction Act (Sections 3A and 3B invoked); Court of Appeal appellate jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Sugar Board v Republic & 2 others", Case Analysis (2014). Civil Appeal No. 50 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/119/eng@2014-02-21

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