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ELCDismissedJudicial Review No. 12 of 2011 (as referenced in the judgment)

Republic v Attorney General & another ex-parte Kidzizi Properties Limited & 2 others [2017] KEELC 2926 (KLR)

High Court of Kenya
12 May 2017
1,631 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Interested Parties filed an application dated 23rd November 2015 seeking leave to be enjoined in the judicial review proceedings and to discharge orders issued by the court on 13th February 2015, which had directed the Respondents by way of Mandamus to amend the survey record and include plot number Kilifi/Jimba/1126 in Register Index Map Sheet No. 12. Before that application was heard, the Ex-parte Applicant filed a Notice of Preliminary Objection dated 20th April 2016 arguing that the court lacked jurisdiction to entertain the Interested Parties' application and was functus officio, relying on Sections 8(3) and 8(5) of the Law Reform Act and Order 53 Rule 6 of the Civil Procedure Rules. Counsel for the Applicant relied on High Court authorities (Omondi J. and Wendo J.) holding that judicial review orders are final and cannot be reviewed. The Interested Parties and Respondents countered that the orders directly affected land in dispute, that the Interested Parties were never heard, and that the court has inherent jurisdiction to correct injustice, citing English authorities and Court of Appeal decisions. The court noted that although some High Court decisions barred review of judicial review orders, the Court of Appeal in Aga Khan Education Services Kenya v R and Nakumatt Holdings Ltd v Commissioner of VAT had held that review may be exercised sparingly in clear-cut cases, in keeping with the maxim that a party should not be condemned unheard. Whether this case qualifies could only be decided after an inter-partes hearing. The preliminary objection was dismissed with costs to await the outcome of the main application.

Questions the Court framed

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

  1. 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. 2.Whether the court is functus officio having granted final judicial review orders
  3. 3.Whether the preliminary objection dated 20th April 2016 should be upheld

Key legal issues

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01

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

Holding

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

Reasoning

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.

p. 4
02

Whether the question of jurisdiction/functus officio can be decided without hearing the Interested Parties' application inter-partes

Holding

No - whether the application falls within the clear-cut cases category requires an inter-partes hearing; it cannot be resolved on a preliminary objection

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Dismissal of the Ex-parte Applicant's Notice of Preliminary Objection dated 20th April 2016
  2. 2.Costs to await the outcome of the Application dated 23rd November 2015

The bench

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

majority

Wrote the judgment

majority
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

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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

p. 4

Costs

The costs to await the outcome of the Application dated 23rd November 2015.

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 those reasons, I dismiss the Ex-parte Applicant’s Notice of preliminary Objection dated 20 th April, 2016.
p. 4Disposition - dismissal of preliminary objection
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.
p. 4Court of Appeal position on review of judicial review orders (Nakumatt Holdings)
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.
p. 4Natural justice - audi alteram partem
The costs to await the outcome of the Application dated 23rd November,2015.
p. 4Costs order

Issues in the judgment

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minor

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

minor

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

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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, "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.