Republic v Attorney General & another ex-parte Kidzizi Properties Limited & 2 others [2017] KEELC 2926 (KLR)
The bottom line
#Kenya's High Court confirmed that final judicial review orders can still be revisited in clear cases of injustice, dismissing a challenge that tried to shut affected parties out of a hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court lacks jurisdiction under Sections 8(3) and 8(5) of the Law Reform Act to entertain the Interested Parties' application to discharge the orders of 13th February 2015
- 2.Whether the court is functus officio having granted final judicial review orders
- 3.Whether the preliminary objection dated 20th April 2016 should be upheld
Key legal issues
#Whether the High Court lacks jurisdiction under Section 8(3) of the Law Reform Act to review, set aside or discharge its own final judicial review order
The preliminary objection was dismissed; although some High Court decisions have held the court functus officio once final judicial review orders are made, the Court of Appeal has taken a contrary view permitting review in clear-cut cases
Counsel for the Ex-parte Applicant relied on Section 8(3) of the Law Reform Act and decisions of Omondi J. and Wendo J. holding that judicial review orders are final and cannot be revisited. The court acknowledged these authorities but noted that the Court of Appeal, in Aga Khan Education Services Kenya v R and Nakumatt Holdings Ltd v Commissioner of Value Added Tax, held that review jurisdiction may be exercised sparingly to obviate hardship and injustice, reaffirming the maxim that a party should not be condemned unheard.
Whether the question of jurisdiction/functus officio can be decided without hearing the Interested Parties' application inter-partes
No - whether the application falls within the clear-cut cases category requires an inter-partes hearing; it cannot be resolved on a preliminary objection
The court held that whether the intended Interested Parties' application to set aside the orders of 13th February 2015 is a clear-cut case, and whether they should have been heard originally, are substantive questions that can only be determined after the application is heard inter-partes, not at the preliminary stage. The objection was therefore premature and was dismissed.
Legal principles established
#- Judicial review proceedings are sui generis, neither civil nor criminal, and ordinary civil orders cannot be obtained in the exercise of judicial review jurisdiction
- A judicial review court may, sparingly and in clear-cut cases, exercise review jurisdiction to correct injustice, in line with the maxim that a party should not be condemned unheard
Court orders
#- 1.Dismissal of the Ex-parte Applicant's Notice of Preliminary Objection dated 20th April 2016
- 2.Costs to await the outcome of the Application dated 23rd November 2015
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules (judicial review jurisdiction of the High Court)
Relief refused
#Upholding of the preliminary objection seeking dismissal in limine of the Interested Parties' application dated 23rd November 2015
The Court of Appeal has held that review jurisdiction in judicial review may be exercised sparingly in clear-cut cases, and whether this is such a case can only be determined after an inter-partes hearing
Costs
The costs to await the outcome of the Application dated 23rd November 2015.
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 those reasons, I dismiss the Ex-parte Applicant’s Notice of preliminary Objection dated 20 th April, 2016.
While we agree with him that judicial review is a special Jurisdiction, we do not agree that in clear cases courts should nonetheless fold their arms and decline jurisdiction.
The Court of Appeal decisions that I have quoted above are in tandem with the cherished maxim that a party should not be condemned un heard.
The costs to await the outcome of the Application dated 23rd November,2015.
Issues in the judgment
#The judgment is signed at Machakos by O.A. Angote on 2nd May 2017 and delivered and signed at Malindi by J.O. Olola on 12th May 2017; the coram and the relationship between the two judges is not explained
The case number of the judicial review proceedings is not stated in the heading; it is only inferable from a reference to Judicial Review No. 12 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & another ex-parte Kidzizi Properties Limited & 2 others [2017] KEELC 2926 (KLR)", Case Analysis (2017). Judicial Review No. 12 of 2011 (as referenced in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2926/eng@2017-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.