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Court of AppealPartially AllowedCivil Appeal No. 210 of 2012· [2015] KECA 171 (KLR)

Henry Asava Mudamba v Institute of Certified Public Accountants of Kenya [2015] KECA 171 (KLR)

Court of Appeal
4 December 2015
GKG. B. M. KariukiPhilomena Mbete MwiluP. M. MwiluJMJ. Mohammed
3,673 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 confirmed that professional bodies must give you a fair hearing before deciding your appeal, or their decision will be quashed.

What this practically means

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Executive summary

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The appellant, an auditor whose firm had audited the collapsed stock brokerage Francis Thuo and Partners Limited, was suspended for two years by the respondent's disciplinary committee. He appealed to the respondent's council under section 33(3) of the Accountants Act. The council acknowledged his memorandum of appeal and indicated he would be summoned to argue it, but ultimately rejected the appeal without giving him an opportunity to be heard. His judicial review application for certiorari and mandamus was dismissed by Musinga J on 7th June 2011, the judge finding he had been unfairly denied a hearing but treating judicial review reliefs as discretionary. The Court of Appeal allowed the appeal. It affirmed the judge's finding that the appellant was unfairly denied an opportunity to be heard, holding that a legitimate expectation of a hearing had been created through correspondence, and that the right to be heard is fundamental under Article 50 of the Constitution. The court held that the trial judge had erred by going into the merits of the council's decision rather than confining himself to the process by which it was made, amounting to a wrong exercise of discretion warranting intervention. Applying the grounds of illegality, irrationality and procedural impropriety and the established scope of certiorari, the court found the conditions for the relief had been satisfied. It declined to determine the admissibility of the replying affidavit or the parity of reasoning under section 35, as that would go to the merits. The court set aside the High Court ruling and allowed the appellant's Notice of Motion dated 2nd November 2010 with costs.

Key legal issues

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01

Whether the denial of an opportunity to be heard on the appeal vitiated the council's decision

Holding

The appellant was denied a hearing despite a legitimate expectation created by correspondence that he would be heard; the decision was tainted by procedural impropriety and irrationality.

Reasoning

The council acknowledged receipt of the memorandum of appeal and indicated the appellant would be given an opportunity to argue it. Once that expectation was created, the council could not determine the appeal without considering the appellant's arguments. The right to be heard is enshrined in Article 50 of the Constitution, and it is not for the court to ask whether the outcome would have differed had the appellant been heard.

p. 4
02

Whether the trial judge wrongly went to the merits of the decision

Holding

The trial judge erred by addressing the extent to which the council could handle appeals under section 33(4) of the Accountants Act rather than how the decision was arrived at, amounting to a wrong exercise of discretion warranting appellate intervention.

Reasoning

Judicial review is concerned with the process leading to the decision - jurisdiction, hearing, relevant considerations - not with whether there was sufficient evidence. By interpreting section 33(4) to determine what the council could do, the judge ventured into the merits, which is not the province of judicial review, and his consequent refusal of discretionary relief could not stand.

p. 5
03

Whether the conditions for grant of judicial review relief were satisfied

Holding

Given the finding of unfair denial of audience, aspects of illegality, irrationality and procedural impropriety were established and the appellant had well satisfied the conditions for grant of the relief sought.

Reasoning

Applying the Pastoli formulation of the grounds for judicial review - illegality, irrationality and procedural impropriety - and the KNEC principles on the scope of certiorari and mandamus, the court held that the failure to afford the appellant a hearing before determining his appeal brought the case squarely within the grounds on which certiorari would issue to quash the council's decision.

p. 6

Legal principles established

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  • In judicial review, the court is concerned only with the decision-making process, not the merits of the decision; a court of review is not entitled to act as a court of appeal over the decision-maker.
  • An order of certiorari will issue where a decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with.
  • Where a body has acknowledged an appeal and given an expectation of being heard, it is irrational and procedurally improper to determine the appeal without considering the appellant's arguments; the right to be heard is fundamental under Article 50 of the Constitution.
  • On a first appeal the Court of Appeal will not interfere with the exercise of judicial discretion unless the judge misdirected himself or was clearly wrong and injustice was occasioned.

Court orders

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  1. 1.Appeal allowed
  2. 2.High Court ruling and order of the trial judge issued on 7th June 2011 set aside
  3. 3.The appellant's Notice of Motion application dated 2nd November 2010 allowed with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 50
  • Accountants Actsection 33(1)(h) and (e)
  • Accountants Actsection 33(3)
  • Accountants Actsection 33(4)
  • Accountants Actsection 28(1)(n)
  • Accountants Actsection 34(1)
  • Accountants Actsection 35(1) and (2)
  • Civil Procedure RulesOrder 42 rule 32
  • Civil Procedure CodeOrder 19 rule 3(1) and Order 19 rule 7
  • Court of Appeal RulesRule 29(1)

Cases cited (13)

  • Hypolito Cassiano de Souza v Chairman and Members of Tanga Town Council
    (1961) EA 377
  • David Oloo Onyango v Attorney General
    unreported
  • John v Rees
    (1969) 2 ALL ER 274
  • Shah v Mbogo
  • Selle v Associated Motor Boat Company Ltd
    [1968] EA 123
  • Coffee Board of Kenya v Thika Coffee Mills Limited & 2 others
    [2014] eKLR
  • Municipal Council of Mombasa v Republic & Umoja Consultants Limited
    [2002] eKLR
  • Pastoli v Kabale District Local Government Council & Others
    [2008] 2 EA 300
  • Council of Civil Service Union v Minister for the Civil Service
    [1985] AC 2
  • Francis Bahikirwe Muntu and others v Kyambogo University
    High Court, Kampala, Miscellaneous Application No. 643 of 2005 (UR)
  • Re An Application by Bukoba Gymkhana Club
    [1963] EA 478
  • Al-Mehdawi v Secretary of State for the Home Department
    [1990] AC 876
  • Kenya National Examination Council v Republic, Exparte Geoffrey Gathenji & 9 Others
    Nairobi Civil Appeal No. 266 of 1996 (Unreported)
On appeal from
High Court of Kenya at Nairobi
HC JR No. 324 of 2010
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 29(1) of the Court of Appeal Rules (appellant's judicial review application having been dismissed by the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Henry Asava Mudamba v Institute of Certified Public Accountants of Kenya [2015] KECA 171 (KLR)", Case Analysis (2015). Civil Appeal No. 210 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/171/eng@2015-12-04

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