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High CourtDismissedApplication dated 21/11/2014 in Judicial Review proceedings (leave application dated 18/11/2014)· [2015] KEHC 5639 (KLR)

County Government of Embu v Republic Exparte John Ireri (Judicial Review)

High Court of Kenya
10 February 2015
1,644 words in judgment
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The bottom line

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Minor procedural errors in a legal filing do not automatically stop a case; the court can still review the substance.

What this practically means

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Executive summary

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The County Government of Embu applied by notice of motion dated 21/11/2014 to discharge, remove or vary an order that leave to apply for judicial review should operate as a stay of two notices dated 9th October and 10th November 2014 levying fees and staying the operation of sub-committees. The leave application had been made ex parte by John Ireri on 18/11/2014 seeking certiorari and mandamus against the County Government. The County Government argued that the leave application used the wrong procedure (notice of motion rather than chamber summons under Order 53 Rule 1(2)), omitted material facts, that it had complied with the notices, that the proceedings were overtaken by events, that county governments are not amenable to judicial review, and that one of the two prayers was omitted. Muchemi J held that the procedural irregularity related to form, not substance, and was curable under Article 159(2)(d) of the Constitution, following Polycarp Wathuta Kanyungo v County Government of Kirinyaga and distinguishing the pre-2010 Communications Commission decision. The court confirmed its jurisdiction under Order 53 Rule 1(4) and its inherent power to review exparte orders, held that county governments' administrative decisions are challengeable by certiorari and mandamus, found both prayers included, and found no proved non-disclosure of material facts, holding that allegations of compliance and public participation were unproved. Validity issues were reserved for the substantive hearing, following Abercrombie & Kent v Republic. The application was dismissed with costs in the cause, and the parties were directed to fast-track the substantive judicial review application.

Key legal issues

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01

Whether use of notice of motion instead of chamber summons for a leave application under Order 53 Rule 1(2) is fatal

Holding

It is not; the irregularity relates to form and is curable under Article 159(2)(d)

Reasoning

The court distinguished the pre-2010 decision in Republic v Communications Commission, holding that stringent pre-Constitution procedure should not defeat substance. Following Polycarp Wathuta Kanyungo v County Government of Kirinyaga, the form does not affect the substance and the defect is curable under the overriding objective of Article 159(2)(d).

p. 2
02

Whether the County Government of Embu is amenable to judicial review

Holding

Yes; its administrative departments make decisions challengeable by certiorari and mandamus

Reasoning

The applicant cited no legal provision or decision supporting its contention that the County Government falls outside supervisable bodies. The court held that government administrative departments make decisions which can be challenged in judicial review, and the exparte applicant has the right to seek certiorari and mandamus against the County Government.

p. 3
03

Whether non-disclosure of material facts was established

Holding

No; the alleged non-disclosures were not proved

Reasoning

The application form for licence renewal was submitted before filing, so no non-disclosure arose. No annexure proved participation in public participation or signing of a memorandum, and no law, County Assembly approval or authority of the Ag. County Secretary was cited for establishing the Directorate in acting capacity. Burden of proof lay on the applicant.

p. 3
04

Whether validity issues should be determined at the interlocutory stage

Holding

No; they must await the substantive judicial review hearing

Reasoning

Relying on Abercrombie & Kent Ltd v Republic, the court held that issues regarding the validity of the judicial review proceedings should be determined between the parties at the hearing of the substantive application, and the exparte leave order is provisional and reviewable at that stage.

p. 3

Legal principles established

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  • Bringing a judicial review leave application by notice of motion instead of chamber summons is an irregularity of form curable under Article 159(2)(d) of the Constitution
  • The High Court has jurisdiction under Order 53 Rule 1(4) and its inherent jurisdiction to set aside or review exparte leave orders operating as stay
  • County Governments make administrative decisions challengeable by judicial review
  • He who alleges the existence of a fact bears the burden of proof

Court orders

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  1. 1.The application dated 21/11/2014 seeking to discharge, remove or vary the order for leave to operate as a stay was dismissed
  2. 2.Costs to be in the cause
  3. 3.Parties to fast-track the judicial review application by taking a date in the registry on priority basis

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 53 Rule 1(2)
  • Civil Procedure Rules, 2010Order 53 Rule 1(4)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010generally (enactment referenced)
  • Embu County Alcoholic Drinks Control Act No. 3 of 2014licence application requirements

Cases cited (5)

  • REPUBLIC VS COMMUNICATIONS COMMISSION OF KENYA EXPARTE EA TELEVISION NETWORK LTD
    [2001]

    An application under Order 53 Rule 1(2) must be made by way of chamber summons

  • POLYCARP WATHUTA KANYUNGO & 2 OTHERS VS THE COUNTY GOVERNMENT OF KIRINYAGA

    Irregularity of form in leave applications is curable under Article 159(2)(d)

  • REPUBLIC VS CAPITAL MARKETS AUTHORITY EXPARTE JOSEPH MUMO KIVAI & ANOTHER
    [2012] eKLR

    High Court jurisdiction over leave operating as stay and inherent jurisdiction to set aside exparte orders

  • ABERCOMBIE & KENT LIMITED & ANOTHER VS REPUBLIC
    Nairobi Civil Appeal No. 195 of 1994

    Issues on validity of judicial review proceedings are determined at the substantive hearing

  • REPUBLIC VS LAND REGISTRAR, KAJIADO & ANOTHER EXPARTE KIRSEK INVESTMENTS LTD
    [2004]

    Exparte leave orders are provisional and reviewable on fuller evidence

Jurisdiction invoked
Order 53 Rule 1(4) of the Civil Procedure Rules, 2010 and the High Court's inherent jurisdiction to set aside or review exparte orders

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, "County Government of Embu v Republic Exparte John Ireri (Judicial Review)", Case Analysis (2015). Application dated 21/11/2014 in Judicial Review proceedings (leave application dated 18/11/2014). Source: 

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