Sian & another v Registrar of Societies & another (Sued as the Officials of the East African Namdhari Sangat)
The bottom line
#Kenya's Court of Appeal confirmed you cannot quash a government decision that never existed — judicial review must target an identifiable decision.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a competent application before the court in terms of the decision sought to be quashed
- 2.Whether the High Court exercised its discretion judiciously in striking out the application
Key legal issues
#Whether the Registrar's registration of officials amounted to a quashable decision
The letter of April 21, 2015 was a response to an inquiry confirming registered officials as at December 31, 2014, not evidence of a decision made on that date; no quashable decision existed.
The Court re-evaluated the letter relied on by the appellants and found it merely confirmed who the registered officials were as at December 31, 2014. The Registrar's evidence that the AGM was held but no elections carried out, hence officials remained the same, was uncontradicted. Without an identifiable decision, certiorari could not lie and the leave application was not properly anchored.
Whether the High Court exercised its discretion judiciously in striking out the application
The Judge properly applied the test for grant of leave - a prima facie arguable case, no inordinate delay - and could not be faulted.
The Court endorsed the test in Republic v County Council of Kwale ex parte Kondo that leave is discretionary and granted only where, without going into depth, there is an arguable case fit for further investigation. The appellants failed to establish a decision by the Registrar determining their rights or a failure to act judicially, so the striking out was proper.
Legal principles established
#- An order of certiorari can only issue against a decision that is proved to exist; a leave application for judicial review not anchored on an identifiable decision is properly struck out.
- Grant of leave to commence judicial review is not a formality; the applicant must show a prima facie arguable case and absence of inordinate delay.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HC Misc. Application No. 178 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (appeal against a Ruling in a judicial review leave application)
Relief refused
#Leave to apply for orders of certiorari to quash the Registrar's alleged decision of December 31, 2014
No decision capable of being quashed was proved; the letter of April 21, 2015 merely confirmed registered officials as at December 31, 2014
Costs
Appeal dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For these reasons, we find no substance in this appeal. It is dismissed with costs.
In the absence of a decision made by the Registrar on December 31, 2014 that could be subject of the order of certiorari, the learned Judge cannot be faulted for striking out the appellants' application for leave, as the same was not properly anchored.
the grant of leave to commence judicial review proceeding is not a mere formality and that leave is not granted as a matter of course.
Leave may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant
Issues in the judgment
#Date discrepancy: 'December 14, 2014' appears where December 31, 2014 is meant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sian & another v Registrar of Societies & another (Sued as the Officials of the East African Namdhari Sangat)", Case Analysis (2022). Civil Appeal 197 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1059/eng@2022-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.