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Court of AppealPartially AllowedCivil Appeal 149 of 2013· [2016] KECA 839 (KLR)

Nation Media Group Limited v Cradle - The Children's Foundation Suing Through Geoffrey Maganya

Court of Appeal
22 January 2016
AVARM VISRAMHOHM OKWENGUSKS OLE KANTAI
4,660 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled a judge cannot convert a judicial review case into a constitutional petition once jurisdiction is found lacking.

What this practically means

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Executive summary

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Cradle, a children's foundation, obtained leave for judicial review seeking mandamus compelling Nation Media Group to comply with section 39 of the Persons with Disabilities Act, requiring sign language insets or sub-titles in television programmes. The High Court found the appellant, a private broadcaster, was not amenable to judicial review, but nonetheless converted the application into a constitutional petition under Article 22, found indirect discrimination against persons with hearing disabilities, and ordered compliance within 90 days. Allowing the appeal, the Court of Appeal held that jurisdiction is invoked by the procedure a party pursues: judicial review under Order 53 lies only against public entities, while enforcement of the Bill of Rights is invoked under Articles 22, 23 and 258. Having found the appellant not amenable to judicial review, the learned Judge lacked jurisdiction to take any further step and ought to have struck out the application; Article 159's override of procedural technicalities is not a panacea and cannot cure a jurisdictional prerequisite, and pleadings give fair notice. Relying on Lemanken Aramat and the Lillian S principle, the Court declined to determine the remaining grounds on horizontal application of rights, proportionality and the constitutional validity of section 39. The High Court judgment of December 21, 2012 was set aside and replaced with an order striking out the respondent's notice of motion, with each party bearing its own costs as public interest litigation.

Key legal issues

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01

Whether conversion of judicial review proceedings into a constitutional petition was permissible

Holding

It was not; the judge could not convert the proceedings once she found the appellant was not amenable to judicial review, and ought to have struck out the application

Reasoning

The respondent had invoked the special judicial review jurisdiction under Order 53 solely for mandamus against the appellant, a private entity. The relief of enforcement of fundamental rights was never before the trial Judge. Following Emfil Limited, unlike Githunguri, conversion was unnecessary and unjustified; jurisdiction having been absent, the court had to down its tools.

p. 8
02

Whether Article 159 could cure the procedural defect

Holding

No; pleadings are a tenet of substantive justice giving fair notice, and Article 159 is not a panacea for procedural shortfalls that are jurisdictional prerequisites

Reasoning

The court adopted the Supreme Court's statement in Patricia Cherotich Sawe invoking Law Society of Kenya that Article 159(2)(d) cannot remedy a procedural step which is a jurisdictional prerequisite. Pleadings define issues and give fair notice, so Article 159 could not justify altering the nature of the proceedings.

p. 7
03

Whether remaining grounds (proportionality, discrimination, section 39 constitutionality) fell for determination

Holding

No; once the jurisdictional failure was established, the other issues did not require consideration

Reasoning

Relying on Lemanken Aramat, where the court below lacked jurisdiction its decisions are null and it is unnecessary to examine other questions that were the subject of those orders. The Court accordingly declined to address the discrimination, proportionality and constitutional validity grounds.

p. 8

Legal principles established

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  • A court that finds a party not amenable to judicial review lacks jurisdiction to take any further step, including converting the proceedings into a constitutional petition
  • The jurisdiction of the High Court in judicial review versus Bill of Rights enforcement is invoked by the procedure a party pursues and the two cannot be interchanged
  • Article 159(2)(d) is not a panacea for all procedural shortfalls and cannot cure a jurisdictional prerequisite
  • Judicial review lies against acts or omissions by public entities only

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court dated December 21, 2012 set aside
  3. 3.Substituted with an order striking out the respondent's notice of motion
  4. 4.Each party to bear its own costs, this being a public interest litigation

Authorities

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Legislation

  • Constitution of Kenya 2010Article 27(1) & (5)
  • Constitution of Kenya 2010Article 34(2)/Article 34
  • Constitution of Kenya 2010Article 44(1)
  • Constitution of Kenya 2010Article 21(3)
  • Constitution of Kenya 2010Article 22(1) & (2); Articles 22 & 258
  • Constitution of Kenya 2010Article 23
  • Constitution of Kenya 2010Article 3
  • Constitution of Kenya 2010Article 159
  • Persons with Disabilities Act No 14 of 2003section 39
  • Civil Procedure RulesOrder 53
  • Court of Appeal RulesRule 29(1)(a)
  • Legal Notice No 182 of 2009
  • Repealed Constitution of Kenyasections 67, 77(1), 84(1)
  • Universal Declaration on Human RightsArticle 7
  • International Covenant on Civil and Political RightsArticles 2(1) & 26
  • United Nations Convention on the Rights of the ChildArticle 2(1)
  • United Nations Convention on the Rights of Persons with DisabilitiesArticles 2, 4(1)(e), 5(1) & 5(2)
  • UNESCO Convention Against Discrimination in EducationArticle 1

Cases cited (16)

  • AXA General Insurance Ltd. & Others v The Lord Advocate & Others (Scotland)
    [2011] UKSC 46

    Pleadings cannot be interchanged without altering jurisdiction; fair balance/proportionality between community interests and individual rights

  • John Mwai & 3 Others v Kenya National Examination Council & 2 Others
    (2011) eKLR

    Constitutionally prohibited discrimination must be unfair and prejudicial; contextual analysis

  • The President of the Republic of South Africa & Another v John Phillip Hugo
    1997 (4) SA ICC

    Impact of discriminatory action must be assessed for whether it furthers the goal of equality

  • Githunguri v Republic
    (1986) 1 KLR

    Conversion of judicial review to constitutional application; relied on by both parties and by trial Judge

  • Sumayyah Mohammed v Moraine & Another
    (1996) 3 LRC

    Support for the propriety of converting proceedings (cited by respondent)

  • Elridge v British Columbia
    1998 ILRC

    Failure to provide sign language necessary for effective communication is a prima facie violation

  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    Civil Appeal No 290 of 2012

    Jurisdiction is the foundation for exercise of judicial authority; pleadings give fair notice

  • Biren Amritlal Shah & Another v Republic & 3 Others
    (2013) eKLR

    Judicial review remedies lie against acts or omissions by public entities

  • R v Judicial Service Commission
    Misc. Civil Application No 1025 of 2003

    Purpose of judicial review is process, not merits

  • Emfil Limited v Registrar of Titles Mombasa & 2 Others
    [2014] eKLR

    A court has no business converting judicial review proceedings into a Bill of Rights petition

  • Thorp v Holdsworth
    (1876) 3 Ch. D. 637

    Object of pleadings is to bring parties to an issue and prevent enlargement

  • Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission (IEBC) & 4 Others
    [2015] eKLR

    Article 159(2)(d) is not a panacea for procedural shortfalls that are jurisdictional prerequisites

  • Law Society of Kenya v The Centre for Human Rights & Democracy & 12 Others
    Petition No 14 of 2013

    Article 159 not a panacea for all procedural shortfalls

  • Jaldesa Tuke Dabelo v IEBC & Another
    Civil Appeal No 37 of 2014

    Supporting the limits of Article 159 remediation

  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd
    (1989) KLR 1

    Jurisdiction is everything; a court downs tools the moment it finds it lacks jurisdiction

  • Lemanken Aramat v Harun Meitamei Lempaka & 2 Others
    [2014] eKLR

    Where a court lacks jurisdiction its decision is null and other questions need not be examined

On appeal from
High Court of Kenya
Judicial Review application (judgment dated December 21, 2012)
Jurisdiction invoked
First appeal under the Court of Appeal Rules (Rule 29(1)(a) re-appraisal of evidence); appeal from High Court judicial review decision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Nation Media Group Limited v Cradle - The Children's Foundation Suing Through Geoffrey Maganya", Case Analysis (2016). Civil Appeal 149 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/839/eng@2016-01-22

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