Republic v Clerk, Kisii County Assembly & 2 others; Atika (Interested Party); Nyamwange & 4 others (Exparte Applicants) (Judicial Review E013 of 2023) [2023] KEELRC 2710 (KLR)
The bottom line
#The High Court in Kisumu dismissed a bid by five Kisii County board members to block their removal, punishing them for hiding earlier court filings and procedural mistakes.
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 ex-parte applicants failed to make full and material disclosure of prior and pending proceedings when seeking leave to commence judicial review
- 2.Whether the Notice of Motion dated 4 May 2023 was competent, having regard to Order 53 Rule 4 of the Civil Procedure Rules
- 3.Whether the Clerk complied with sections 3 and 4 of the Petition to County Assemblies (Procedure) Act and the Standing Orders in processing the Petition for removal
- 4.Whether the Petition was premature for failure to exhaust alternative dispute resolution mechanisms and whether it was sub judice
- 5.Whether the Speaker's direction that the Committee report within 14 instead of 60 days breached the right to a fair hearing
- 6.Whether the issue of quorum invalidated the committal of the Petition
- 7.Whether the Respondents' failure to supply requested documents breached the right to access information
- 8.Whether the orders sought had been overtaken by events and were moot
Key legal issues
#Material non-disclosure and abuse of court process
The ex-parte applicants were culpable of material non-disclosure of prior and parallel applications for leave and were in abuse of the court process
The applicants sought leave in three successive applications: Kisumu Judicial Review No. E012 of 2023, Nairobi Misc Civil Application No. E015 of 2023, and a third Kisumu application, without disclosing the existence of the others to either court. Represented by seasoned advocates, they were bound to make full and fair disclosure. The failure amounted to forum shopping and abuse of process, disentitling them from the discretionary remedies sought.
Competence of the judicial review Motion
The Motion dated 4 May 2023 was incompetent and defective because it was not accompanied by the affidavits and statutory statement filed at the leave stage
Order 53 Rule 4 requires the Motion to be accompanied by the Statement and affidavits used at the leave stage, since those are the facts on which leave was granted and which were served on Respondents. The applicants introduced a new Statement of Facts dated 4 May 2023 and a Statutory Declaration dated 4 May 2023 without leave; the verifying affidavit sworn 5 May 2023 was also irregularly filed. Both were struck out and the Motion was held defective.
Compliance by the Clerk with the Petition to County Assemblies (Procedure) Act
The Court was unable to conclude that the Petition lodged with the Clerk was invalid for non-compliance with the law
The record showed two Petitions: a 2-page Petition signed by the Interested Party lodged with the Clerk without evidentiary material, and a 45-page Petition with evidence before the Committee. The Clerk processed the Petition within the prescribed 7-day limit, and the applicants, relying on unchallenged affidavit evidence not subjected to cross-examination, did not show the processing violated any law, was unreasonable or prejudiced their rights.
Sub judice and alternative dispute resolution
The pending court cases did not concern removal of the Board members and could not bar the Petition; removal of board members is the legal prerogative of the County Assembly and not a matter for ADR
The pending petitions concerned recruitment decisions and a human resource audit, not the removal of the applicants, so the sub judice challenge failed. Section 3(g) of the Petition to County Assemblies Procedure Act does not specify ADR avenues, and the applicants did not disclose which fora should have been approached first, since removal is a mandate of the County Assembly.
Time given to the Committee and fair hearing
The 60 days under Standing Order 202(2) is a maximum, not a minimum, and the applicants showed no evidence of handicap in preparing their defence
Adequacy of time depends on the complexity of the inquiries and must be assessed case by case. The applicants alleged insufficient time but adduced no evidence of any handicaps they suffered in defending themselves before the Committee, so the fair hearing challenge on this ground failed.
Mootness
The prohibitive orders sought were moot because the County Assembly had voted to remove the applicants before the leave orders were served
The orders secured at the leave stage were served after the County Assembly had voted to remove the applicants, so a purely prohibitive order would have achieved no practical purpose. Some of the orders sought had been overtaken by events.
Legal principles established
#- An ex-parte applicant for judicial review leave must make full disclosure of all material facts, including prior and pending proceedings on the same subject matter; failure deprives the applicant of any advantage from the proceedings
- A judicial review Motion must be accompanied by the Statement of Facts and affidavits used at the leave stage; new statements or declarations cannot be introduced without leave of the Court
- The 60 days provided under Standing Order 202(2) is the maximum time a County Assembly Committee may take on a Petition, and adequacy of time is determined case by case
- Orders of judicial review may be declined even where a case has been made out
Court orders
#- 1.The verifying affidavit sworn by Judy Omare Nyakerario on 5 May 2023 struck out
- 2.The Statutory Declaration dated 4 May 2023 struck out
- 3.Further supplementary submissions filed on 2 October 2023 expunged from the record
- 4.The Motion dated 4 May 2023 dismissed with costs to the Respondents and Interested Party
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules; Articles 35(1)(b), (2), 50(1)(b)(c) and (j) of the Constitution invoked by the ex-parte applicants
Relief refused
#Judicial review orders (prohibitory orders against the removal process)
The ex-parte applicants failed to make material disclosure, abused the court process, the Motion was incompetent and defective, and the orders sought were overtaken by events
Order of mandamus compelling the Interested Party to furnish records and documents
The Interested Party was not a public body or authority
Order compelling the County Assembly and Governor to furnish the Institute of Human Resource Management audit report
The report was an interim report which had not been approved by the County Government
Costs
The Motion dated 4 May 2023 dismissed with costs to the Respondents and Interested Party.
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.
The ex-parte applicants are not only culpable for material non-disclosure but were in abuse of the court process, if not on a trip to forum shop.
The Court, therefore, finds that the Notice of Motion was not only incompetent but defective.
The ex-parte applicants have not made a case for grant of judicial review orders.
The Court orders the Motion dated 4 May 2023 dismissed with costs to the Respondents and Interested Party.
Orders of judicial review can be declined even where a case has been made.
It is of fundamental importance that applications for judicial review should be made with full disclosure of all material available to the Claimant.
Issues in the judgment
#The judgment refers to a 2nd Interested Party but none appears on the record of the application
The judgment states the notice of withdrawal was filed on 25 April 2023 and endorsed on 6 June 2023, but also states that two days after the endorsement (6 June 2023), on 13 April 2023, the applicants moved the Court in Nairobi - an internally inconsistent chronology
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Clerk, Kisii County Assembly & 2 others; Atika (Interested Party); Nyamwange & 4 others (Exparte Applicants) (Judicial Review E013 of 2023) [2023] KEELRC 2710 (KLR)", Case Analysis (2023). Kisumu Judicial Review No. E013 of 2023 (Motion dated 4 May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2710/eng@2023-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.