Njagi v Muchiri & another (Judicial Review E006 of 2023) [2024] KEELC 1812 (KLR)
The bottom line
#A Kenyan court confirmed you can file judicial review under the Constitution or Fair Administrative Actions Act without first getting the court's leave.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on the requirement of leave under Order 53 was sustainable
The objection failed. The Applicant anchored his application on the Constitution and the Fair Administrative Actions Act, under which leave is not a prerequisite to judicial review; the two judicial review processes co-exist and the litigant may choose between them.
The court traced judicial review from its common law basis in Sections 8 and 9 of the Law Reform Act and Order 53 CPR to its constitutional entrenchment under Articles 23 and 47. It held that the Law Reform Act provisions were not repealed and both routes co-exist. Since the Applicant elected the constitutional and FAAA route, leave under Order 53 was not required, so the objection, which raised the leave requirement, lacked merit.
What constitutes a valid preliminary objection
Applying Mukisa Biscuit, a preliminary objection must be a point of law on facts not in dispute; compliance with a mandatory statutory requirement goes to jurisdiction.
The court adopted the classic test in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd as stated by Law, JA, that a preliminary objection is a point of law which, if argued as a preliminary point, may dispose of the suit. It accepted that whether the Applicant complied with a mandatory statutory requirement was a question going to jurisdiction, hence properly raised as a point of law.
Legal principles established
#- A preliminary objection must be on a point of law founded on facts not in dispute; if evidence would be required, it is unsustainable.
- Under the Fair Administrative Actions Act, 2015 no leave is required before the institution of judicial review proceedings.
- Kenya has two co-existing judicial review processes - common law prerogative writs and constitutional judicial review - and a litigant may choose between them; leave is not required where the application is anchored on the Constitution.
- A litigant who elects the constitutional route is not required to seek and obtain leave and cannot be faulted for that choice.
Court orders
#- 1.The 1st Respondent's Notice of Preliminary Objection dated 31st October 2023 is dismissed
- 2.Costs of the Preliminary Objection shall be in the cause
- Jurisdiction invoked
- Articles 23 and 47 of the Constitution of Kenya, 2010; Sections 8 and 9 of the Law Reform Act (Cap 26); Order 53 of the Civil Procedure Rules, 2010; Fair Administrative Actions Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Njagi v Muchiri & another (Judicial Review E006 of 2023) [2024] KEELC 1812 (KLR)", Case Analysis (2024). Judicial Review application arising from Notice of Motion dated 13th October 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1812/eng@2024-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.