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Court of AppealPartially AllowedCivil Appeal No. 171 of 1993· [2015] KECA 776 (KLR)

Kenya Nut Company Limited v Kenya Farm Nut Co-operative Society Ltd & Horticultural Crops Development Authority (Civil Appeal 171 & 172 of 1993) (Civ) [2015] KECA 776 (KLR)

Court of Appeal
24 April 2015
4,470 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a co-operative was wrongly granted a macadamia export licence order because a rival wasn't told about the case, and no valid licence application existed.

What this practically means

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Executive summary

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This consolidated appeal from Shields, J.'s ruling of 8th October 1993 in H.C. Misc. No. 830 of 1993 concerned judicial review proceedings in which Kenya Farm Nut Co-operative Society Ltd obtained an order of mandamus compelling the Horticultural Crops Development Authority to issue it a macadamia nut export licence. Kenya Nut Company Limited, an excluded interested party claiming a de facto export monopoly, appealed in Civil Appeal No. 171 of 1993 on service grounds; the Authority appealed in Civil Appeal No. 172 of 1993 on the merits and mandamus principles. The Court of Appeal allowed both appeals and set aside the High Court decision. On service, it held that the law places a high premium on serving all persons directly affected; a person likely to suffer detriment or loss, including financial or commercial effect, is directly affected and entitled to service and a hearing, so the trial judge erred in excluding the appellant. On the licence application, the Court found that the application submitted was by a differently named society and was not accompanied by the requisite fee, and that the 'no objection' letter exhibited was not a licence under the Legal Notice No. 188 of 1972; hence no valid application existed. On mandamus, applying Halsbury's Laws of England and the Kenya National Examinations Council decision, the Court held that mandamus can compel only consideration of an application, not the grant of a licence, and cannot enforce discretionary duties. The Court reiterated that judicial review concerns process, not merits. The 1st respondent was ordered to bear the costs of the appeal.

Key legal issues

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01

Who is a 'person directly affected' entitled to service and a hearing in judicial review proceedings

Holding

The appellant was directly affected; financial or commercial effect suffices, and failure to serve it was an error of law.

Reasoning

Relying on Order LIII rules 3(1), 3(2) and 6 of the Civil Procedure Rules and ex parte Muldoon, the court held that 'directly affected' connotes effect without intermediate agency, and that a person likely to suffer detriment or loss, including financial loss, must be served and heard. The trial judge's distinction between commercial and legal effect was plainly wrong.

p. 6
02

Whether the 1st respondent made a valid application for an export licence

Holding

No valid application was made: the application submitted was by Kenya Farm Nut Multipurpose Co-operative Society Limited, a different entity, and there was no evidence the requisite fee accompanied it; the letter exhibited was not a licence under paragraph 4(2).

Reasoning

The application form submitted on 20th July, 1992 was by a differently named society. Counsel could not confirm whether the two were the same company or whether fees were paid. Even presuming the application was the 1st respondent's, no fee was proved and no licence in Form 2 was issued; the letter of 'no objection' did not amount to a licence. A mere submission of an incomplete application creates no obligation or right.

p. 6
03

Scope of mandamus over a discretionary statutory power

Holding

The High Court erred in granting mandamus compelling the Authority to issue the export licence; at most it could compel consideration of a valid application.

Reasoning

Applying Halsbury's Laws of England (4th ed., vol. 1) and the Kenya National Examinations Council decision, the court held that where a statute imposes a duty but leaves discretion as to the mode of performance, mandamus cannot command the duty to be performed in a specific way, nor enforce discretionary duties. The Authority's refusal was supported by reasons, with which the court was satisfied.

p. 7

Legal principles established

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  • A person likely to suffer any detriment or loss as a result of a decision, including a commercial or financial effect, is a person 'directly affected' who must be served with a judicial review application and given an opportunity to be heard.
  • Mandamus cannot issue to compel a licensing authority to grant a licence; it may only compel the authority to consider a valid application, and cannot enforce a discretionary duty.
  • In judicial review the court is concerned with the process of decision-making, not the merits of the decision.
  • The law places a very high premium on service of judicial review applications upon all persons directly affected, and the court may adjourn or permit an unserved proper person to be heard.

Court orders

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  1. 1.Both appeals (Civil Appeal No. 171 of 1993 and Civil Appeal No. 172 of 1993) allowed
  2. 2.Decision of the High Court delivered on 8th October, 1993 set aside
  3. 3.1st respondent to bear the costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 53(2)
  • Civil Procedure RulesOrder LIII rule 3(1)
  • Civil Procedure RulesOrder LIII rule 3(2)
  • Civil Procedure RulesOrder LIII rule 6
  • Legal Notice No. 188 of 1972 (Horticultural Crops Development Authority (Export) Order)Paragraph 3
  • Legal Notice No. 188 of 1972 (Horticultural Crops Development Authority (Export) Order)Paragraph 4
  • Legal Notice No. 188 of 1972 (Horticultural Crops Development Authority (Export) Order)Paragraph 4(1)
  • Legal Notice No. 188 of 1972 (Horticultural Crops Development Authority (Export) Order)Paragraph 4(2)
  • Legal Notice No. 188 of 1972 (Horticultural Crops Development Authority (Export) Order)Paragraph 5
  • Agriculture Act

Cases cited (4)

  • ABDUL WAHEED SHEIKH v ABDUL SHAKOOR SHEIKH & ANOTHER
    (1982-88) 1 KAR
  • REGINA v RENT OFFICER SERVICE & ANOTHER ex parte MULDOON
    [1999] 1 W.L.R. 1103
  • KENYA NATIONAL EXAMINATIONS COUNCIL v REPUBLIC Ex parte Geoffrey GATHENJI & 9 OTHERS
    [1997] eKLR
  • KENYA NATIONAL EXAMINATION COUNCIL v REPUBLIC ex parte GEOFFREY GATHENJI NJOROGE & 9 OTHERS
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. No. 830 of 1993
Jurisdiction invoked
First appellate/appellate jurisdiction over appeals from the High Court in judicial review proceedings (Civil Appeal Nos. 171 and 172 of 1993, consolidated)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kenya Nut Company Limited v Kenya Farm Nut Co-operative Society Ltd & Horticultural Crops Development Authority (Civil Appeal 171 & 172 of 1993)  (Civ) [2015] KECA 776 (KLR)", Case Analysis (2015). Civil Appeal No. 171 of 1993. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/776/eng@2015-04-24

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