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ELCPartially AllowedJudicial Review Application No. Misc. E052 of 2021· [2021] KEELC 3452 (KLR)

Republic v Jubilee Party & another Ex parte John Kieru Wambui & another [2021] KEELC 3452 (KLR)

High Court of Kenya
19 April 2021
PNP. Nyamweya
2,324 words in judgment
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The bottom line

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Kenya's High Court ruled that party disputes must go through internal mechanisms first, and cases belong where defendants live or the dispute arose.

What this practically means

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Executive summary

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This ruling of the High Court (P. Nyamweya J) addressed two applications in a judicial review matter brought by Hon. John Kieru Wambui and Hon. Kariuki Muchiri against Jubilee Party and its Acting Secretary General, Hon. Raphael Tuju, challenging a letter dated 11 January 2021 removing them from the Nyandarua County Assembly Service Board. First, the ex parte Applicants sought review of the Court's ruling of 14 April 2021 transferring the matter to Nyahururu. The Court held the transfer was erroneously premised on the residence of the Applicants and affected parties rather than the Respondents' domicile in Nairobi and the place the cause of action arose, and set the ruling and orders aside, reinstating the suit in Nairobi. Second, the Court considered the Applicants' Chamber Summons dated 13 April 2021 seeking leave for orders of certiorari and prohibition. Following a PPDT ruling of 13 April 2021 striking out their complaint for want of exhaustion of internal party dispute resolution mechanisms under section 40(2) of the Political Parties Act, the Court found the judicial review application res judicata and an abuse of process. Applying Article 159(2)(c) of the Constitution, sections 9(2) and (3) of the Fair Administrative Action Act, and the Court of Appeal decision in Geoffrey Muthinja Kabiru, it held that judicial review is a remedy of last resort and that the Applicants' remedy was an appeal under section 41 of the Political Parties Act. The Chamber Summons was struck out, with no order as to costs on both applications.

Key legal issues

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01

Whether the Court could review its own ruling of 14 April 2021 transferring the matter to Nyahururu

Holding

Yes. The transfer was erroneously predicated on the residence of the ex parte Applicants and affected parties rather than the residence of the Respondents and the place the cause of action arose under section 15 of the Civil Procedure Act; the ruling and orders were set aside.

Reasoning

Section 15 of the Civil Procedure Act places suits where the defendant resides or where the cause of action arises. The Respondents are domiciled and headquartered in Nairobi and the impugned decision was made there, so territorial jurisdiction lies with Nairobi. The earlier transfer wrongly focused on where the Applicants reside and work, which was an error justifying review under section 80 of the Civil Procedure Act and Order 45 Rule 1.

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02

Whether the Chamber Summons dated 13 April 2021 seeking leave for judicial review is competent

Holding

No. It is res judicata and an abuse of court process because the Applicants failed to exhaust the internal party dispute resolution mechanisms required before approaching the PPDT and this Court, and their proper remedy against the PPDT ruling was an appeal under section 41 of the Political Parties Act.

Reasoning

The PPDT struck out the Applicants' complaint for want of exhaustion of internal mechanisms under section 40(2) of the Political Parties Act. Article 159(2)(c) of the Constitution and sections 9(2) and (3) of the Fair Administrative Action Act mandate exhaustion of alternative remedies. Relitigating the same issue is barred by section 7 of the Civil Procedure Act, and the Applicants' remedy against the Tribunal's ruling was an appeal, not a collateral judicial review challenge.

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Legal principles established

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  • Exhaustion of internal and alternative dispute resolution mechanisms is a constitutional and statutory imperative before resort to judicial review
  • An available adequate alternative remedy is a material consideration in the exercise of the Court's discretion to grant leave for judicial review, judicial review being a remedy of last resort
  • Judicial review proceedings cannot be used to circumvent a ruling of a competent tribunal that has not been lawfully set aside

Court orders

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  1. 1.The ex parte Applicants' Notice of Motion dated 15 April 2021 certified urgent and admitted to hearing ex parte in the first instance
  2. 2.The ruling and orders issued on 14 April 2021 set aside and the suit reinstated for hearing by this Court
  3. 3.No order as to the costs of the Notice of Motion dated 15 April 2021
  4. 4.The Chamber Summons dated 13 April 2021 certified urgent and admitted to hearing ex parte
  5. 5.The Chamber Summons dated 13 April 2021 found to be incompetently filed and an abuse of court process, and struck out with no order as to costs
  6. 6.The Deputy Registrar of the Judicial Review Division to send a copy of the ruling to the ex parte Applicants by electronic mail by close of business on Tuesday, 20 April 2021
  7. 7.Parties at liberty to apply

Authorities

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Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure Actsection 15
  • Civil Procedure Actsection 7
  • Civil Procedure RulesOrder 45 Rule 1
  • County Governments Act No. 17 of 2012section 12(5)(a)
  • Political Parties Actsection 40
  • Political Parties Actsection 41
  • Fair Administrative Action Actsection 9(2), (3) and (4)
  • Constitution of KenyaArticle 159(2)(c)

Cases cited (1)

  • Geoffrey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others
    [2015] eKLR
Jurisdiction invoked
High Court supervisory/territorial jurisdiction under section 15 of the Civil Procedure Act and judicial review jurisdiction (order of certiorari and prohibition); review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules

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 Jubilee Party & another Ex parte John Kieru Wambui & another [2021] KEELC 3452 (KLR)", Case Analysis (2021). Judicial Review Application No. Misc. E052 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3452/eng@2021-04-19

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