REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII MISCELLANEOUS CIVIL APPLICATION NO. E068 OF 2026 THOMAS MATARA BARARE.................................................APPLICANT VERSUS JOYCE NYAKERARIO NYASETIA......................................RESPONDENT RULING 1. This is an application for leave to apply for judicial review. It is dated 3rd March 2026. It has come up before me for ex parte hearing. Although it has not cited any legal provisions, it is ostensibly brought under Order 53 Rule 1 of the Civil Procedure Rules. Which is the provision for an application of this nature. 2. That provision states that a leave application should be by way of a Chambers Summons made ex parte. It also provides that the application be accompanied with a Verifying Affidavit application was and a instead Statement accompanied of Facts. with a This draft memorandum of appeal; instead of those two. 3. This to me is an Appeal through the backdoor, or an Appeal packaged as judicial review proceedings; and this Application, a backdoor application for stay pending Appeal. 4. In that from the grounds in the said Memorandum of Appeal, the Applicant is challenging the merits of the said KISII HC Misc Civil Application No. E068 of 2026 1
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judgment. Not its legality, correctness, or procedural fairness. That is probably the reason why the Applicant even chose to accompany this Application with a draft Appeal instead of the two documents requisite in judicial review proceedings. 5. Although the availability of an appeal does not automatically bar the judicial review avenue, appeal and judicial review are two different and distinct pathways that cannot be pursued together as one. 6. Besides, judicial review was not meant to substitute Appeal, and would ordinarily not lie against the merits of a judgment. In respect of judgments, the scope of judicial review is much narrower, and would ordinarily not avail. 7. An Appeal is concerned with the merits of the decision. Judicial review for its part, is concerned with legality, procedural fairness, propriety of the decision-making process. Judicial review unlike appeal, is not intended to provide a second opportunity to argue that a court or tribunal reached a wrong factual or juridical conclusion. 8. Therefore, any party that is aggrieved by a judgment of a trial court, should either Appeal to a higher court, or apply for review to the same court. Besides, judicial review proceedings are usually brought in the name of the Republic; with the aggrieved person as an Ex Parte Applicant. 9. In my view, failing to bring the proceedings in the name of the Republic, is a mere incorrectness in title. A misdescription of parties. Which in my view, is not fatal even in judicial review proceedings, which are special proceedings. KISII HC Misc Civil Application No. E068 of 2026 2
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10. In Commissioner of Lands v. Hotel Kunste [1997] KECA (KLR) 413, the Court of Appeal held that the judicial jurisdiction under Order 53 of the Civil Procedure Rules is a special jurisdiction which when being exercised, the court is neither exercising civil nor criminal jurisdiction. 11. Therefore, these being special proceedings or proceedings sui generis, a litigant invoking the court’s judicial review jurisdiction, should do so properly, and as prescribed and contemplated by Order 53. 12. The Applicant in this Application has not done so. He has not brought the proceedings in the name of the Republic. Neither has he accompanied the Application with a Statement of Facts and a Verifying Affidavit. Interestingly, he has not even cited Order 53 Rule 1, as the enabling provision under which the Application was brought. 13. Failure to cite the enabling legal provisions is however, a mere procedural error, that is not fatal. On the other hand, the failure to bring the proceedings in the name of the Republic, and failure to accompany the Application with Statement of Facts and a Verifying Affidavit, are not mere procedural omissions but noncompliance with a substantive legal requirement. 14. A substantive mandatory legal requirement such as this cannot be said to be a mere procedural omission. Neither is it a procedural technicality in terms of Article 159 (2) (d) of the Constitution. This provision is only with regard to procedural technicalities. 15. Failure to accompany the Application with these two documents is not such procedural technicality. It is failure KISII HC Misc Civil Application No. E068 of 2026 3
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to comply with a substantive legal requirement. In my considered view, it is a fatal omission that goes to the root of the Application. Because without these documents, the Application is fatally incompetent, and the court cannot proceed any further. 16. As judicial review proceedings are special proceedings, the omission is not a mere procedural omission or procedural technical error, hence not curable under Article 159 (2) (d). 17. For this, the Application fails. I therefore strike it out, and decline to grant leave for judicial review. DATED and DELIVERED at KISII on this 23 rd day of April 2026. PROF (DR) NIXON SIFUNA JUDGE KISII HC Misc Civil Application No. E068 of 2026 4
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