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Court of AppealDismissedCivil Appeal 197 of 2017

Sian & another v Registrar of Societies & another (Sued as the Officials of the East African Namdhari Sangat)

Court of Appeal
7 October 2022
2,093 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a first appeal against a High Court ruling (Odunga, J, 18 November 2015) striking out the appellants' application for leave to apply for certiorari to quash an alleged decision of the Registrar of Societies made on December 31, 2014 registering the 2nd respondents as bona fide officials of the East African Namdhari Sangat. The appellants, members of the Society, complained that the 2nd respondents had been in office for 25 years without annual general meetings or audited accounts, and that the Registrar registered them despite the appellants' objections. The High Court overruled a preliminary objection on limitation but struck out the application, finding no decision of December 31, 2014 capable of being quashed and no prima facie case, and noting inordinate delay. The Court of Appeal identified two issues: whether there was a competent application in terms of the decision sought to be quashed, and whether the High Court exercised its discretion judiciously. It held that the letter of April 21, 2015 relied on by the appellants was merely a response to an inquiry confirming the registered officials as at December 31, 2014, and did not evidence any decision or registration on that date. The Registrar's uncontradicted evidence was that the AGM was held but no elections took place, so the officials remained the same. In the absence of an identifiable decision, certiorari could not lie, and the Judge could not be faulted. The appeal was dismissed with costs; the respondents neither filed submissions nor attended the hearing.

Questions the Court framed

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

  1. 1.Whether there was a competent application before the court in terms of the decision sought to be quashed
  2. 2.Whether the High Court exercised its discretion judiciously in striking out the application

Key legal issues

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01

Whether the Registrar's registration of officials amounted to a quashable decision

Holding

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.

Reasoning

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.

p. 4
02

Whether the High Court exercised its discretion judiciously in striking out the application

Holding

The Judge properly applied the test for grant of leave - a prima facie arguable case, no inordinate delay - and could not be faulted.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Appeal dismissed with costs

The bench

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

majority
majority
majority
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

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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

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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.

For these reasons, we find no substance in this appeal. It is dismissed with costs.
Final orders - dismissal of appeal
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.
p. 4Certiorari requires an existing decision
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.
p. 2Test for grant of leave in judicial review
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
p. 4Leave stage test (quoting Waki, J in Kondo)

Issues in the judgment

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minor

Date discrepancy: 'December 14, 2014' appears where December 31, 2014 is meant

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, "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.