Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 30 of 2012· [2018] KECA 100 (KLR)

James Mwariri Gatome & 7 others v Republic & another [2018] KECA 100 (KLR)

Court of Appeal of Kenya
23 November 2018
5,891 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal quashed a Land Surveyors Board disciplinary decision because two complainants sat and voted on the tribunal that heard the case.

What this practically means

#

Executive summary

#
The appellants, a licensed surveyor and seven Approved Assistants trading as Gatome & Associates, challenged before the High Court (Judicial Review) the decision of the Land Surveyors Board of 14th July 2005 suspending the 1st appellant's licence for six months for gross professional misconduct, a suspension which extended to all the Approved Assistants practising under his licence. Wendoh, J. dismissed the motion for certiorari and prohibition on 18th December 2006, despite finding that two Board members, I. N. Mwathane and Muriithi Mugo, were interested complainants who should not have participated in the disciplinary proceedings. On appeal, the Court of Appeal, in a single judgment of the court, held that the disciplinary process was fatally flawed: Mwathane, a complainant, was appointed prosecutor and both Mwathane and Mugo sat and voted on the tribunal, contrary to the fundamental rule that no man may be a judge in his own cause. Relying on Pinochet (No. 2), General Medical Council v Spackman and Masamo v County Assembly – Taita Taveta, the court held that a decision reached in breach of natural justice is 'no decision' and cannot stand even if the same outcome would have resulted. The court further held that the suspension of the 2nd–8th appellants without any hearing breached their right to be heard, and that the Judge having made findings favouring the appellants but refusing certiorari, her exercise of discretion was open to interference. The appeal was allowed in full; certiorari was issued quashing the Board's decision, the 1st appellant's licence was restored, the Gazette Notice was cancelled, prohibition was granted, and costs were awarded against the 2nd respondent.

Key legal issues

#
01

Bias - participation of complainants as adjudicators and prosecutor in disciplinary proceedings

Holding

The participation of Mwathane (who led the prosecution) and Mugo as board members, both being complainants, vitiated the entire disciplinary decision notwithstanding that the Board may have reached the same result without their votes.

Reasoning

The court applied the rule against bias that no man may be a judge in his own cause, citing Pinochet (No. 2) and Halsbury's Laws. The two members had a direct interest as authors of the Embu complaint; Mwathane was appointed prosecutor and both voted. Reliance was placed on General Medical Council v Spackman that a decision in breach of natural justice is 'no decision', and on Masamo v County Assembly – Taita Taveta that such a decision cannot stand whatever the merits.

p. 7
02

Right to a hearing of the 2nd to 8th appellants (Approved Assistants)

Holding

The suspension of the Approved Assistants' licences without any hearing at all breached the rules of natural justice and vitiated the decision as against them.

Reasoning

The decision suspended the 2nd–8th appellants' operations as surveyors practising under the 1st appellant's licence, yet they were never accorded a hearing. The court held they were being deprived of their livelihood without procedure or a right to be heard, and that the Judge's refusal of certiorari despite finding the members should not have sat was a misdirection entitling the appellate court to interfere with the exercise of discretion.

p. 7
03

Interference with discretion of the court below

Holding

Where the Judge failed to consider necessary principles in exercising her discretion against granting certiorari, the appellate court is entitled to interfere with that discretion.

Reasoning

The 2nd respondent urged deference to the Judge's discretionary refusal of certiorari. The court held that the Judge had failed to consider necessary principles - having herself found that the two members were interested and should not have participated - and therefore the appellate court was entitled to, and did, interfere with the exercise of discretion, allowing the appeal and issuing certiorari.

p. 7
04

Scope of judicial review

Holding

Judicial review is concerned with the decision-making process and the jurisdiction of the decision-maker, not with the merits of the decision itself.

Reasoning

Relying on Municipal Council of Mombasa v Umoja Consultants and Kenya National Examinations Council v Republic ex parte Geoffrey Gathinji Njoroge, the court reiterated that a court in judicial review examines how the decision was made, whether the decision-maker had jurisdiction, whether affected persons were heard, and whether relevant or irrelevant matters were taken into account, and is not a court of appeal over the decider.

p. 5

Legal principles established

#
  • A decision of a quasi-judicial tribunal reached in violation of the rules of natural justice, including where complainants sit as adjudicators, is vitiated in its entirety and cannot stand; the outcome would have been the same is no answer.
  • A decision reached in violation of the rules of natural justice cannot be allowed to stand regardless of whether the tribunal would have reached the same decision.
  • Persons affected by a disciplinary decision who are denied a hearing are condemned contrary to the fundamental principle of natural justice that no man may be a judge in his own cause.
  • Judicial review is concerned with the decision-making process, not the merits of the decision.

Court orders

#
  1. 1.Order of certiorari issued under Rule 31 to remove to the High Court and quash the decision of the 2nd respondent made on 14th July, 2005
  2. 2.The surveyor's licence issued to the 1st appellant restored
  3. 3.Kenya Gazette Notice No. 5727 cancelled
  4. 4.Respondents prohibited from relying on the decision made on 14th July, 2005
  5. 5.Appellants awarded costs of the appeal here and below, to be paid by the 2nd respondent

Authorities

#

Legislation

  • The Survey ActCap 299 (generally)
  • Penal CodeSection 313
  • Penal CodeSection 104(b)
  • Criminal Procedure CodeSection 87(a)
  • Civil Procedure RulesOrder 53
  • Civil Procedure Actgenerally (Notice to Registrar)
  • Court of Appeal RulesRule 29
  • Court of Appeal RulesRule 31
  • Halsbury's Laws of EnglandVol. 1, 4th Edition, paragraph 97

Cases cited (8)

  • Ephantus Mwangi v Duncan Mwangi Wambugu
    [1982 – 1988] 1 KAR 278
  • Republic v Hendon Rural District Council, exparte Chorley
    [1933] ALL E. R. 20
  • Municipal Council of Mombasa vs Umoja Consultants Limited & Another
    [2002] eKLR
  • Kenya National Examinations Council vs Republic [exparte] Geoffrey Gathinji Njoroge & 9 Others
    Civil Appeal No. 266 of 1996 (ur)
  • Galaxy Paints Company Limited vs Falcon Guards Limited
    [1999] eKLR
  • R v Bow Street Metropolitan Stipendiary Magistrate and Others ex-parte Pinochet Ugarte (No. 2)
    [1999] 1 All E R 577
  • Stephen Mring'a Masamo & 4 Others v County Assembly – Taita Taveta & 2 Others
    [2017] eKLR
  • General Medical Council v Spackman
    [1943] 2 All E. R.
On appeal from
High Court of Kenya at Nairobi
H. C. Misc. Application No. 1337 of 2005
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court acting in original jurisdiction in judicial review proceedings, under the Court of Appeal Rules (Rules 29 and 31); appeal against the 1st respondent withdrawn at hearing

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "James Mwariri Gatome & 7 others v Republic & another [2018] KECA 100 (KLR)", Case Analysis (2018). Civil Appeal No. 30 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/100/eng@2018-11-23

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