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Court of AppealDismissedCivil Appeal (JR No. 246 of 2012, High Court) - appeal from consolidated proceedings JR No. 246 of 2012, JR No. 202 of 2012 and Petition No. 245 of 2012

Republic v Kenya National Highways Authority & 2 others; Amica Business Solutions Limited (Ex parte) (Civil Appeal 114 of 2013) [2016] KECA 142 (KLR)

Court of Appeal of Kenya
4 November 2016
8,633 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld existing billboard contracts despite an unconstitutional approval process, and clarified that the six-month judicial review deadline does not apply to ordinary administrative decisions.

What this practically means

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Executive summary

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This is a Court of Appeal judgment arising from three consolidated High Court proceedings (JR No. 246 of 2012, JR No. 202 of 2012 and Petition No. 245 of 2012) challenging Kenya National Highways Authority's authorization of Ikon Prints Media Company Limited and others to erect billboards and gantries on Nairobi road reserves without competitive tendering. On 8th March 2013 the High Court dismissed the applications, having found the procedure breached Articles 10 and 227 of the Constitution but declining to quash the resulting agreements because the same process had been applied to all industry players without discrimination. The appellant appealed on two condensed grounds: abuse of the trial judge's discretion and statutory limitation under section 9(3) of the Law Reform Act and Order 53 rule 2 of the Civil Procedure Rules. The Court of Appeal (Karanja, Warsame and G.B.M. Kariuki, JJA) dismissed the appeal, save for an important clarification on limitation. It held the trial judge acted within the law in declaring the process unconstitutional yet declining to cancel the contracts, recognizing the remedy of temporary validity (suspension of a declaration of invalidity), a progressive concept not expressly provided in the Constitution. On limitation, the Court held that the six-month rule applies only to judicial and quasi-judicial proceedings; an administrative letter granting permission, sent to a specific person and not copied to affected parties, is not caught, and the appellant was not time barred. That clarification did not, however, save the appeal, as the appellant failed to show prejudice. Each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the trial judge exercised his discretion properly in the circumstances (in declaring the process unconstitutional but declining to quash the authorizations)
  2. 2.Whether the appellant's application for an order of certiorari was time barred

Key legal issues

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01

Whether the High Court judge properly exercised discretion in declaring the KeNHA process unconstitutional but declining to quash the authorizations

Holding

Yes. The judge could adopt the remedy of temporary validity/suspension of invalidity, and given that the same process had benefitted many industry players including some of the complainants, it was within the law to suspend rather than nullify the contracts.

Reasoning

The Court held the case transcended judicial review into constitutionality. Articles 10 and 227 are not non-derogable and can be interpreted purposively in light of the justice of the case. Drawing on the South African remedy of suspended invalidity and Kenyan precedents, the Court found the judge was entitled to balance interests and allow existing contracts to stand while requiring prospective compliance.

p. 13
02

Whether the certiorari application was barred by the six-month limitation under Order 53 rule 2 and section 9(3) of the Law Reform Act

Holding

No. The limitation applies only to judicial and quasi-judicial proceedings; the impugned communication was an administrative letter to a specific person, not copied to other interested parties, so the appellant was not time barred.

Reasoning

Order 53 rule 2 was meant to cover proceedings where there was a hearing, parties were informed or aware, and a judgment or decision capable of dissemination. A private letter in response to another does not qualify; ejusdem generis construes 'other proceedings' as judicial or quasi-judicial. The appellant, not being party to the process, could not have known of the letter.

p. 14
03

Whether the appellant discharged the burden of showing prejudice from the 1st respondent's decision

Holding

No. The appellant did not demonstrate it had applied to be considered in the same manner as the 3rd respondent and failed to show it was prejudiced by the letter of 10th November 2011.

Reasoning

The Court applied the presumption that acts of public bodies are done rightly and regularly (omnia praesumuntur rite et solemniter esse acta), requiring proof of non-compliance and its effect. Unsupported allegations of backdating could not displace the limitation analysis or establish prejudice.

p. 12

Legal principles established

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  • The six-month limitation in Order 53 rule 2 and section 9(3) of the Law Reform Act applies only to judicial or quasi-judicial decisions, not to administrative decisions such as a letter granting permission
  • A court may declare a law or act unconstitutional yet suspend or decline to give immediate effect to the declaration of invalidity in the interests of justice
  • An appellate court will not interfere with a discretionary decision unless the judge misdirected himself, misapprehended the facts, took or failed to take account of relevant considerations, or was plainly wrong

Court orders

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  1. 1.Appeal dismissed save for the clarification on limitation of time
  2. 2.Each party to bear its own costs

The bench

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

majority
Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Nairobi
JR No. 246 of 2012 (consolidated with JR No. 202 of 2012 and Petition No. 245 of 2012)
Jurisdiction invoked
Article 164(3) of the Constitution and section 3(1) of the Appellate Jurisdiction Act
Consolidated with
JR No. 202 of 2012, Petition No. 245 of 2012

Relief refused

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Setting aside the High Court judgment of 8th March 2013 and allowing the appellant's notice of motion dated 12th June 2012 (certiorari and mandamus)

The trial judge properly exercised discretion in declining to quash the authorizations; the remedy of suspension/declaration of temporary validity was available; and the six-month limitation did not bar the application but that clarification alone could not save the appeal

p. 14

Costs

Each party to bear its own costs.

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.

In conclusion therefore, having considered the appeal before us, the very able submissions of all counsel herein, the law, facts and cases cited to us, we come to the inevitable conclusion that save for that small clarification on limitation of time, this appeal must fail.
p. 14Final orders - appeal dismissed
Accordingly, we dismiss it with orders that each party bears its own costs.
p. 14Final orders - costs
We hold the view therefore that the six months limitation would not apply to "decisions" made by administrative bodies which fall outside the purview of the definition "decision, judgment, order, decree or other proceedings" as contemplated under Order 53 rule2 of the Civil Procedure Act.
p. 14Limitation - certiorari against administrative decisions
The law gives the court discretionary power to grant an order of temporary validity of otherwise unconstitutional laws or acts in the interests of justice and good government.
p. 13Remedy of temporary validity / suspended invalidity
It is our view that they can be interpreted in a purposive manner that would take into account the circumstances and the justice of the case, without necessarily adhering to the textual interpretation.
p. 12Purposive interpretation of Articles 10 and 227
first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.
p. 10Circumstances for appellate interference with discretion

Issues in the judgment

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minor

Internal inconsistency: the trial judge is first recorded as having dismissed the proceedings while finding the process unconstitutional, but the narrative later says the petition 'failed in so far as the orders sought were directed at the agreements'; the Court of Appeal itself notes the judge's contradictory stance on limitation

minor

Case name inconsistency: the Court cites 'Coffee Board of Kenya v Thika Coffee Mills Limited & 2 others' where 'Cofiee Board of Kenya v Thika Cofiee Mills Limited' appears (OCR artifact of the same case)

minor

Scribal error: the Court refers to 'Order 53 rule2 of the Civil Procedure Act' where the instrument cited throughout is the Civil Procedure Rules

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, "Republic v Kenya National Highways Authority & 2 others; Amica Business Solutions Limited (Ex parte) (Civil Appeal 114 of 2013) [2016] KECA 142 (KLR)", Case Analysis (2016). Civil Appeal (JR No. 246 of 2012, High Court) - appeal from consolidated proceedings JR No. 246 of 2012, JR No. 202 of 2012 and Petition No. 245 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/142/eng@2016-11-04

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