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Court of AppealDismissedCivil Appeal No. 216 of 2009· [2015] KECA 139 (KLR)

Ransa Company Ltd v Manca Francesco & 2 others

Court of Appeal of Kenya
11 December 2015
7,264 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a judicial review court cannot set aside its own consent orders — an aggrieved party must appeal instead of asking for review.

What this practically means

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Executive summary

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This appeal arose from a long-running land dispute between Ransa Company Ltd, the registered proprietor of Plot No. 671 Watamu, and Manca Francesco, registered proprietor of Plot No. Kilifi/Jimba/439, over overlapping titles. In judicial review proceedings (Misc. Application No. 924 of 2006, later transferred to Nairobi as Misc. Appl. No. 7 of 2007), a consent order recorded on 31st October 2006 between counsel for Manca and state counsel - without the appellant, the interested party - granted mandamus revoking entries on Ransa's title and prohibition against further dealings. The appellant's application to review and set aside that consent order was dismissed by Wendoh J on 23rd September 2008 on the ground that a judicial review court has no jurisdiction to review its own orders; the remedy lay in appeal to the Court of Appeal. The appellant instead appealed against that ruling. The Court of Appeal, by majority (Karanja JA, with Mwera JA concurring), dismissed the appeal, holding that judicial review jurisdiction is a sui generis straightjacket confined to Sections 8 and 9 of the Law Reform Act and Order 53, dispossessed of inherent jurisdiction; that judicial review addresses process, not merits; that fraud must be pleaded and proved with viva voce evidence, impossible in judicial review; and that a consent order entered by parties qua parties cannot be quashed by certiorari. Koome JA dissented, holding that a consent excluding an interested party whose title it revoked was irregular and tainted by collusion, that mandamus and prohibition cannot issue by consent, and that she would have set aside the consent order. The decision below was affirmed and costs were not awarded, the respondents having failed to attend despite service.

Key legal issues

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01

Jurisdiction of a judicial review court to review its own consent orders

Holding

A judicial review court has no inherent jurisdiction to review or set aside a consent order made in judicial review proceedings; the remedy of an aggrieved party is an appeal to the Court of Appeal under Section 8(3) and (5) of the Law Reform Act.

Reasoning

Judicial review jurisdiction is sui generis and a straightjacket, confined to Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules. Unlike civil jurisdiction, it permits no recourse to inherent jurisdiction. The High Court judge correctly found her hands tied and advised the appellant to appeal, which it failed to do. The failure to raise procedural objections was jurisdictional, not a curable technicality.

p. 3
02

Nature of judicial review remedies and consent orders

Holding

Mandamus and prohibition are public law remedies directed at public officers and cannot be quashed or reviewed where the underlying order was entered into by private parties qua parties; such a consent order must be set aside by a court of competent jurisdiction after fraud is proved.

Reasoning

The consent order was entered into by the parties through their respective advocates, not by a public officer acting in that capacity, so certiorari could not lie. Fraud particulars must be pleaded and proved with viva voce evidence, which judicial review proceedings do not accommodate. Imposing public law remedies on private law disputes would divert from established course.

p. 3
03

Validity of a consent order excluding an interested party (dissent)

Holding

Koome JA dissenting: a consent order that revokes a party's registered title without that party's knowledge, participation or hearing is irregular, unprocedural and unlawful, and where it smacks of collusion or fraud it is distinguishable from the contractual-effect principle in Flora Wasike.

Reasoning

The right to be heard is fundamental and constitutionally protected. The appellant was the registered proprietor in possession, had filed a lengthy replying affidavit, yet was excluded from the consent which had the effect of revoking its title. Mandamus and prohibition are public law commands to public bodies and cannot issue by consent. The Deputy Registrar also lacked jurisdiction to record such a consent in judicial review proceedings, which are the preserve of the High Court.

p. 7
04

Substantive justice and the overriding objective (dissent)

Holding

Koome JA dissenting: under Sections 1A and 1B of the Civil Procedure Act courts must focus on substantive justice rather than procedural technicalities, and an application, though not elegantly drawn, seeking correction of a null and void consent order should have been entertained.

Reasoning

The learned judge misapprehended that the application was not seeking to review a judge's decision-making jurisdiction but to correct the record where an illegal consent order existed. There was no judicial determination of the judicial review application since Maraga J did not determine the disputed issues. The overriding objective confers latitude on courts to achieve fair, just and proportionate disposal of cases.

p. 9

Legal principles established

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  • A court exercising judicial review jurisdiction is confined to the statutory framework of Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules and cannot invoke inherent jurisdiction to review or set aside its own orders, including consent orders.
  • Judicial review concerns the process by which a decision was made, not its merits.
  • Fraud must be specifically pleaded and proved, ordinarily with viva voce evidence, and cannot be determined in judicial review proceedings.
  • Certiorari lies only against orders of public officers acting in that capacity; a consent order entered by parties qua parties through their advocates cannot be quashed by certiorari and must be set aside by a court of competent jurisdiction after fraud is proved.
  • Per the dissent: a consent order cannot take away the proprietary rights of a party to the suit who is not party to the consent and has not been heard; orders of mandamus and prohibition, being public law remedies directed at public bodies, cannot issue by consent of parties.

Court orders

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  1. 1.Appeal dismissed by majority (Karanja and Mwera JJA)
  2. 2.No orders as to costs
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Appl. No. 7 of 2007 (originally Misc. Application No. 924 of 2006, Malindi)
Jurisdiction invoked
First appeal under Section 8(3) and (5) of the Law Reform Act against a ruling in judicial review proceedings

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Ransa Company Ltd v Manca Francesco & 2 others", Case Analysis (2015). Civil Appeal No. 216 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/139/eng@2015-12-11

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