Bivac International SA v Kenya Revenue Authority & Others (Ruling on the 1st Interested Party's Application dated 31st October 2005)
The bottom line
#Kenya's High Court confirmed that striking-out applications under civil procedure rules cannot be used in judicial review cases; disputed evidence waits for the full hearing.
What this practically means
#Executive summary
#Key legal issues
#Competence of invoking civil procedure rules in judicial review
To the extent the application invoked the civil procedure jurisdiction it is incompetent, judicial review being a special sui generis jurisdiction
Relying on Ringera J in Welamondi, the court held that judicial review under Order 53 exercises neither civil nor criminal jurisdiction but a special jurisdiction, so section 3A and Order 18 cannot apply. The Civil Procedure Act and Rules cannot be applied selectively when convenient.
Exclusivity of judicial review
Judicial review is the exclusive means of challenging public law matters, and civil procedure devices such as notices to admit, discovery or interrogatories cannot be imported into it
Following O'Reilly v Mackman, the court restated the exclusivity principle to prevent procedural minefields being imported from civil procedure, holding that challenging documents in advance would put the cart before the horse and defeat judicial review objectives.
Timing of challenges to affidavit documents
Disputed documents should be dealt with at the substantive hearing; interlocutory striking-out would prejudge the merits and deny the court the material needed to assess illegality, irrationality or impropriety
The impugned paragraphs constituted the heart of the challenge to the decision-making process; intervening would make the court sit in appeal over its own leave decision and sever parts of the application. Any challenges to validity of affidavits should be raised when the main application is heard.
Legal principles established
#- Judicial review proceedings under Order 53 are sui generis and it is incompetent to invoke the Civil Procedure Act and Rules within them
- The exclusivity principle means judicial review is the exclusive means by which public law matters may be challenged
- The inherent jurisdiction should not be used to import technicalities into judicial review or frustrate hearings on merit
Court orders
#- 1.The application dated 31st October 2005 is dismissed
- 2.Costs awarded in the cause
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and the Law Reform Act (Cap 26), with inherent jurisdiction under section 3A of the Civil Procedure Act invoked by the applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bivac International SA v Kenya Revenue Authority & Others (Ruling on the 1st Interested Party's Application dated 31st October 2005)", Case Analysis (2006). Judicial Review Application (Notice of Motion dated 31st October 2005) — Misc. Civil Application. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.