[2024] KEHC 15107 (KLR)

Gichuhi & 2 others v Data Protection Commissioner; Waigwa & another (Interested Parties) (Application E202 of 2023) [2024] KEHC 15107 (KLR) (Judicial Review) (2 December 2024) (Judgment)

Neutral citation: [2024] KEHC 15107 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E202 of 2023

J Ngaah, J

December 2, 2024

Between

Allen Waiyaki Gichuhi SC

1st Applicant

Charles Wambugu Wamae

2nd Applicant

Wamae & Allen Advocates

3rd Applicant

and

Data Protection Commissioner

Respondent

and

Ambrose Ndungu Waigwa

Interested Party

Florence Wamuyu Mathenge

Interested Party

Judgment

Applicants Case 1. By a motion dated 30 November 2023, the applicants have moved this Honourable Court for orders that:“1. The matter be certified urgent and the court be heard ex-parte in the first instance.

2. Pending inter-partes hearing of this Application, this Honourable Court be pleased to admit, pursuant to provisions of Article 47 of the Constitution as read together with Section 7 of the Fair Administrative Action Act, this Judicial Review proceedings and issue directions on hearing and determination of this Application on a priority basis.

3. A declaration do (sic) issue that the decision by the Respondent made on 26th September, 2023, violated the Applicants right to a fair hearing and the principles of Fair Administrative Action as provided for under Articles 47 and 50 of the Constitution of Kenya, 2010 by failing to consider that the Applicants Complaint dated 27ᵗʰ July 2023 which is premised on Article 31 of the Constitution and the Data Protection Act, 2019 thus denying them an opportunity to be heard.

4. A declaration do (sic) issue that the decision of the Respondent dated 26th September, 2023, violated the principles of procedural fairness.

5. An order of mandamus be and is hereby issued compelling the Respondent to readmit for fresh investigations the complaint by the Applicants dated 27ᵗʰ July 2023, and to determine the matter within 90 days from the date of readmission.

6. Costs be provided for.”

2. The application is expressed to be brought under articles 10, 19, 20, 21, 22, 23, 27, 47 & 50 of the Constitution; sections 3, 4 & 7 of the Fair Administrative Actions Act No. 4 of 2015; and, sections 2, 5, 8, 9 & 56 of the Data Protection Act No. 24 of 2019(hereinafter “the DPA”). The application is also stated to be brought underthe Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules and the Data Protection Complaints Handling Procedure and Enforcement) Regulations, 2021(hereinafter “the Regulations”). It is supported by the affidavit Mr. Charles Wambugu Wamae, an advocate of this Honourable Court and a managing partner of the 3rd respondent which is a firm of advocates. He is the 2nd applicant in the instant application. He has described the 1st applicant as “the senior partner” of the 3rd applicant.

3. Mr. Wamae has sworn that the applicants lodged a petition with the Data Protection Commissioner (hereinafter “the DPC”), on 1 August 2023. According to the information on the Office of Data Protection Commissioner’s official website, the current Commissioner is Ms. Immaculate Kassait. The applicant’s complaint was against the interested parties who are alleged to have disclosed confidential data to a third party without consent of the data controller and processor. The data is said to have comprised sensitive personal data of various data subjects such as natural persons' intellectual property and property details. The 1ˢᵗ interested party's accessed the data by virtue of her employment with the 3ʳᵈ Applicant.

4. The complaint against the interested parties is also said to have been based on what the applicants say was unauthorised disclosure of the various documents sent by email amounting to breach of confidentiality of client's personal information and infringement on the intellectual property rights of the 3rd applicant’s “various advocates” who, according to the applicants, “spent countless hours in meticulous research at creating unique precedents in various complex matters”.

5. The documents shared were the 3ʳᵈ applicant's trade secrets and intellectual property which ought not to have been shared with an external party without due authorisation. These documents included legal opinions, arbitral award and pleadings in word format and their undue disclosure may as well have aided a competitor in knowing the 3rd applicant’s strategy and its position on various matters it is handling.In one of the documents described as “a Letter of Engagement” of one of the 3ʳᵈ applicant's clients, the 3rd applicant was specific that the documents in the letter could not be publicized without the express written authority and consent of the said 3ʳᵈ applicant's client.

6. Three weeks lapsed without any action on the part of the DPC and, in particular, by the end of this period, she had not issued directions on the conduct of the applicants’ petition, prompting the applicants to urgently write a letter dated 23 August 2023 to remind her that according to section 56 (5) of the Data Protection Act, a complaint, such as the one lodged by the applicants, ought to be investigated, heard and determined within ninety days. Thus, applicants implored the DPC to issue directions so as to expeditiously determine the petition within the said statutory timeline.

7. There was no response to the applicant’s letter and by a letter dated 15 September 2023, the applicants reminded the DPC that their compliant ought to be resolved by 29 October 2023. The DPC finally responded vide her letter dated 26 September 2023 in which she declined to admit the applicant’s complaint citing Regulation 6 (2) (b) and Regulation 6 (3) of the regulations and held that the complaint does not fall within her mandate under the DPA. She advised the applicants to approach the relevant authorities.

8. The applicants wrote to the DPC on 3 October 2023 expressing dissatisfaction with her decision and cited apparent bias and disenfranchisement of the applicants’ constitutional and statutory rights. They intimated their intention to institute the instant proceedings as against what they thought was ill-advised and misconceived prejudice exhibited in the DPC’s decision.

9. The rest of the depositions in the applicants’ affidavit largely comprise of matters of law that would be appropriately covered in the submissions. In particular, various provisions of the law have been invoked with court decisions to boot. The “depositions” have been labeled “the legal foundation of the petition and the mandate of the ODPC”.

Respondent and 1st interested party’s case 10. The respondent opposed the application and filed grounds of objection and a replying affidavit to that effect. In the grounds of objection, the respondent contended that, contrary to the applicants’ assertion, the mandate of the respondent in giving effect to article 31(c) and (d) of the Constitution is narrowed down to the protection of the privacy of individuals who are natural persons rather than juristic persons. This is clear from the preamble and sections 2, 3(c) and (e) of the DPA which provide that: -Section 2 "data subject" means an identified or identifiable natural person who is the subject of personal data;"personal data" means any information relating to an identified or identifiable natural person;’Section 3 ‘The object and purpose of this Act is—(c)to protect the privacy of individuals; and(e)to provide data subjects with rights and remedies to protect their personal data from processing that is not in accordance with this Act.’

11. The 3rd applicant, not being a data subject and incapable of possessing any personal data, could not lodge a complaint alleging breach of its personal data under section 56(1) of the Data Protection Act, 2019 as read with Regulation 4(1) and (3) of the Regulations.

12. The respondent also averred that while most of the exhibits submitted before this Honourable Court is data ostensibly belonging to the 3rd applicant’s clients, the applicants have not demonstrated any authority to act on behalf of the said third parties in lodging their complaint before the respondent. This, according to the respondent, is contrary to section 56(1) of the DPA and the Regulations.

13. Further, the respondent has previously determined a similar complaint by the same applicants based on similar set of facts and against the same respondents in a determination dated 17 June 2023 which was issued pursuant to the judgment of Honourable Justice J. Chigiti (S.C.) in Milimani HCJR No. E028 of 2023- Gichuhi & 2 others v Data Protection Commissioner; Mathenge & another (Interested Parties) (Judicial Review E028 of 2023) (2023) KEHC 17321 (KLR) (Judicial Review) (12 May 2023) (Judgment). As such, the applicants’ complaint which is the subject of the instant suit is res judicata and, therefore, an abuse of this Honourable Court’s process.

14. The respondent’s replying affidavit was sworn by Mr. Oscar Onyango Otieno who has introduced himself as “the Deputy Data Commissioner (Complaints, Investigations & Enforcement) in the Office of the Data Protection Commissioner”. Like the applicant, the respondent has largely delved into what her position in law is and, in particular, justified her decision to decline admission of the applicants’ complaint.

15. Of particular relevance to this application though, is the admission by the respondent that she received the applicants’ complaint or petition and that she declined to admit it. Her version of the nature of the complaint and when it was received is that on 1 August 2023, the applicants lodged a complaint dated 27 July 2023 against the interested parties in this suit. The complaint alleged that the 1st interested party, being an employee of the 3rd applicant, had been sharing various private information belonging to the applicants with the 2nd interested party.

16. The 2nd interested party had previously worked with the 3rd applicant but had, at the time, left the employment. The documents alleged to have been shared between the two interested parties are a legal opinion dated 10 September 2020 addressed to Simon Fraser Van Der Burg in PDF version; an appeals checklist 2019 in the name of the 3rd applicant in word format with extracts of annexes from the Court of Appeal Rules, 2010; and, a legal opinion dated 24 June 2019 addressed to Shalimar Flowers Self Help Group and Shalimar Flowers Kenya Limited in word version. The other document was the 3rd applicant’s “Guide on Administration under the Insolvency Act No. 18 of 2015”.

17. Apparently, the applicants had previously lodged a similar application registered as no. Complaint No. 677 of 2022- Allen Waiyaki Gichuhi & Charles Wambugu Wamae versus- Florence Mathenge & Ambrose Waigwa but to distinguish it from the subsequent complaint, the applicants alleged that the previous complaint was lodged under section 57 of the DPA while the subsequent one was based on Article 31 of the Constitution.

18. In this latter petition the applicants sought the following orders that:“A.A declaration that the Respondents breached the right of the Claimants to privacy contrary to Article 31(c) and (d) of the Constitution of Kenya 2010 by revealing the private affairs and infringing on the privacy of the communication of the Claimants; and,B.An order of compensation in the form of general damages, directed at the Interested Parties for violation of the Applicants’ fundamental rights to privacy under Article 31 of the Constitution of Kenya 2010. ”

19. According to the respondent, her preliminary review of the complaint revealed that there were no allegations or evidence of unlawful processing of personal data relating to the 1st and 2nd applicants who, under the DPA, are the only persons with standing to lodge a complaint. Also, the complaint was largely pegged on an allegation of reveal and infringement of the applicants’ privacy and communication yet all the four documents that are subject of the allegation are indicated or labelled as the property of the 3rd applicant. In the respondent’s view, the 3rd applicant is not a data subject capable of possessing any personal data that can be subject to breach under the DPA.

20. Nevertheless, the respondent admitted that the legal opinion dated 10 September 2020 contained personal data relating to Mr. Simon Fraser Van Der Burg but then the said Mr. Van Der Burg was neither a complainant in the applicants’ complaint nor was he represented by any of them as required under Regulation 4(1) and (3) of the Regulations.

21. Responding to the allegation that the applicants have been discriminated against, the respondent has particularised cases which the applicants cited in support of this argument as cases in which complaints were admitted and deposed that, unlike in the applicants’ case, in all these other cases, the complaint related to manner of processing of personal data attributable to natural persons or data subjects.

22. With respect to complaint no. 677 of 2022, the respondent has sworn that the complaint was dated 20 July 2022. The complaint was anchored on section 56 of the DPA and was filed against the 1st interested party for allegedly sharing and disclosing sensitive personal data to a third party, who is named as the 2nd interested party in these proceedings. A determination on the complaint was made on 6 January 2023.

23. The applicants were aggrieved by the determination and, therefore, sought for judicial review orders in this Honourable Court in Milimani HCJR No. E028 of 2023- Gichuhi & 2 others v Data Protection Commissioner; Mathenge & another (Interested Parties) (Judicial Review E028 of 2023) [2023] KEHC 17321 (KLR) (Judicial Review). Chigiti, J (S.C.) quashed the determination and ordered the DPC to re-consider the complaint.

24. Consequently, the DPC re-admitted the applicants’ complaint dated 20 July 2022, considered the complaint and rendered its determination on 17 June 2023. The two previous decisions dated 6 January 2023 and 17June 2023 are based on a similar set of facts and were made against the same respondents. Accordingly, the respondent has urged, the complaint that is subject of this application is an abuse of this Honourable Court’s process.

25. The 1st interested party filed grounds of objection opposing the application. She has averred that the applicants’ complaint or petition dated 1st August 2023 to the respondent is an abuse of the court process following the lodging of an appeal by the applicants in High Court Appeal HCCA E641 OF 2023. The petition or complaint is, in any event, is res judicata. The 1st interested party has also pleaded that the complaint or petition is contrary to the principles of double jeopardy as against the 1st and 2nd interested party.The 2nd interested party did not file any response.

Applicants submissions 26. Besides laying the factual background in their written submissions, the applicants have submitted that under article 31 of the Constitution, every person has the right to privacy, which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed; or the privacy of their communications infringed. They have invoked the preamble to the DPA which is to the effect that it is intended to give effect to Article 31 (c) and (d) of the Constitution; and, to establish the Office of the DPC and to make provision for the regulation of the processing of personal data. It is also intended to provide for the rights of data subjects and obligations of data controllers and processors; and, for connected purposes.

27. They identified three issues for determination which are; first, whether the respondent violated the applicants' right to fair administrative action;, second, whether the applicants are entitled to the prayers sought in these proceedings; and, finally, to whom, amongst the parties to the suit should costs be awarded.

28. On the first issue, they have submitted that the respondent being a state officer, is bound by the national values and principles of governance in accordance with article 10(2) of the Constitution. They have cited the case of Republic v Public Procurement Administrative Review Board & 3 others Ex-Parle Olive Telecommunication PVT Limited (2014) eKLR, where it was held that article 10 on national values and principles of governance bind all persons. It is urged that the respondent’s functions are administrative actions and, therefore, subject to section 2 of the Fair Administrative Actions Act No. 4 of 2015.

29. Further, Regulation 13(3) of the Regulations, provides that in conduct of investigations of a complaint the rrespondent is to be guided by the Fair Administrative Action Act. The applicants have also invoked Article 47 of the Constitution which provides that every person has the right to an administrative action, that is, expeditious, efficient, lawful, reasonable and procedurally fair and cited Judicial Service Commission v Mbalu Mutava & another (2015) eKLR where article 47 of the Constitution is said to have been applied. The court in that case held that article 47 of the Constitution not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights.

30. Contrary to this provision, it is urged that the respondent declined to admit the applicants' complaint; that there was procedural unfairness; and, that there was apparent bias in declining to admit the applicants' complaint while the respondent has previously exercised and continues to exercise its jurisdiction over similar disputes.

31. In support of their submissions, the applicants relied on Republic versus Public Procurement Administrative Review Board & 2 others ex parte Rongo University (2018) eKLR, where the court noted that an administrative decision is flawed if it is illegal, and it is illegal if it contravenes or exceeds the terms of the power which authorises the decisions and pursues an objective other than that for which the power to make the decision was conferred. It is also illegal if it is not authorised by any power and contravenes or fails to implement a public policy.

32. The applicants also submit that their petition before the DPC was based on article 31 of the Constitution as read with the DPA which is, itself, a normative derivative of article 31. The applicants relied on the case of Mwanzia versus Rhodes (Constitutional Petition E115 of 2022) [2023] KEHC 2688 (/UR), where it was held that since Parliament has donated powers to the DPC to determine if one's privacy rights under Article 31(c) and (d) of the Constitution have been infringed, then it means the DPC has such power to determine whether privacy rights in the Bill of Rights has been denied, violated, infringed or threatened. In that case, this Honourable Court held that the DPC has the jurisdiction to determine whether a complainant's privacy rights in the Bill of Rights were denied, violated, infringed or threatened and that the DPC has further powers to order appropriate compensation in the event of proof of the infringement.

33. It is urged that the respondent was bound by this decision under the doctrine of stare decisis and ought to have heard the applicants’ petition. For the same argument, the applicants relied on Kweri v Beehive Media Limitedi Capwel Industries Limited (Interested Party) (Constitutional Petition E321 0(2021) (2023/KEHC 2684 ([(LR) (Constitutional and Human Rights) (31 March 2023) (Judgment).

34. The applicants also submitted that since the DPC has failed to discharge her statutory obligation, this Honourable Court should intervene and grant the orders sought and, in this submission, the applicants have relied on Pevans East Africa Limited & Another versus Chairman, Betting Control & Licensing Board & 7 others (2018) eKLR where the court held that:“Where the Constitution has reposed specific functions in an institution or organs of state, the court must give those organs sufficient leeway to discharge their mandate and onlv accept an invitation to intervene when those bodies are demonstrably shown to have acted in contravention of the Constitution, the law or that their decisions are so perverse, so manifestly irrational that they cannot be allowed to stand under the principles and values of our Constitution.”

35. The applicants have also urged that, to the extent that the respondent has admitted and determined complaints similar to the applicants’ complaint, the respondent has breached their right to be heard and, to this end, they have relied on Republic versus National Cohesion and Integration Commission Chama Cha Mawakili Limited (Exparte) (Judicial Review Application E057 of 2022) (2022) KEHC 10206 (KLR) (Judicial Review) (14 July 2022) (Judgment), where the court held, inter alia, that the right to be heard is cardinal and cannot be derogated.

36. On the issue of whether the applicants are entitled to the judicial review reliefs, the applicants relied on Suchan Investment Limited versus Ministry of National Heritage & Culture & 3 others, (2016) KLR and Dande & 3 others v Inspector General. National Police Service & 5 others (Petition 6 (E007). 4 (BOOS) & 8 (EOJO) 0(2022 (Consolidated)) (20231 KESC 40 (KLR) (16 June 2023) (Judgment), for the submission that under article 47 of the Constitution as read with section 7 of the Fair Administrative Action Act, the court is entitled to adjudicate on the merits of the respondent’s decision. In the latter decision, the Supreme Court affirmed the position that the entrenchment of judicial review in the Constitution 2010 elevated it to a substantive and justiciable right.

37. Accordingly, judicial review is no longer a strict administrative law remedy but also a constitutional fundamental right enshrined in the Constitution. For that reason, the court affirmed the need to conduct merit review in judicial review applications. The same position was followed in Praxedes Saisi & 7 others v Director of Public Prosecutions & 2 others) (Petition 39& 40 of 2019 (Consolidated)) [2023] KESC 6 (KLR) (Civ) (27 January 2023) (Judgment).

38. The applicants concluded their submissions by urging that, an order of mandamus would be the most ideal in the circumstances of this case since it would compel the respondent to admit their complainant. As to the circumstances when this order would be granted, the applicants cited Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Nioroge & 9 others (1997) eKLR.

Respondent’s submissions 39. It has been submitted on behalf of the respondent that on 1 August 2023, she received the applicants’ complaint and subjected it to a preliminary review to determine whether it raised issues covered in the DPA, and whether she had jurisdiction to determine the issues raised. This was consistent with Regulation 6(1) of the Regulations which enjoins the DPC to conduct the preliminary review on a complaint to ascertain whether it can be admitted.

40. The DPC established that the complaint neither fell within her mandate nor raised any issue under the DPA. Based on these findings, she wrote to the applicants on 26 September 2023 informing them that she had declined to admit their complaint pursuant to Regulations 6(2)(b) and 6(3) of the Regulations. She suggested to the applicants to lodge their complaint with the relevant authorities. The applicants were also informed that they could reinstitute their complaint in the event new issues under the Act arose.

41. Against this background, the respondent identified three issues for determination which are that, first, whether DPC’s decision of 26 September 2023 violated the principles of fair administrative action and principles of natural justice; second, whether the applicant’s complaint was res judicata; and, third, the party or parties to bear the costs of the suit.

42. On the first issue, it has been submitted that, in determining the alleged contravention of articles 47 and 50 of the Constitution, this Honourable Court is bound to consider the prevailing statutory regime governing the mandate of the DPC. In particular, while considering similar issues, this Honourable Court in Dry Associates Limited versus Capital Markets Authority & Another Interested Party Crown Berger (K) LTD [2012] eKLR cited the Court of Appeal in Commissioner General, Kenya Revenue Authority versus Silvanous Onema Owaki t/a Marenga Filling Station where it was held that:-“67…the right to be heard must be determined according to the statutory scheme which sets out the duties of the statutory corporation and the rights of the subject. 68. In order to determine whether the petitioner rights protected under Article 47 have been breached, I think it is important to understand the role of the CMA.”

43. Following this decision, the applicants have submitted that the DPC’s preliminary decision not to admit the complaint was made within the scope of jurisdiction granted to the DPC by the DPA and the Regulations, which do not require prior opinion of the applicants. The jurisdiction of the DPC to issue the decision is traced to the Regulations whose object and purpose are spelt out at Regulation 3 as follows:(a).facilitate a fair, impartial, just, expeditious, proportionate and affordable determination of complaints lodged with the Data Commissioner in accordance with the Act and these Regulations, without undue regard to technicalities of procedure;(d).provide for the procedure for hearing and determining of complaints;

44. The respondent has submitted further, that Regulation 6(1) of the Regulations mandates the DPC to ‘undertake a preliminary review of a complaint, upon receipt of the complaint.’ Upon undertaking the preliminary review, Regulation 6(2) provides that the DPC may: -a)admit the complaint;b)where applicable, advise the complainant in writing that the matter is not within the mandate of the Data Commissioner; orc)advise the complainant that the matter lies for determination by another body or institution and refer the complainant to that body or institution.

45. Regulation 6(3) and (5) of the Regulations provide for the instances in which the DPC can decline to admit a complaint. They state as follows: -(3)Despite sub-regulation (2), the Data Commissioner may decline to admit a complaint where the complaint does not raise any issue under the Act.(5)Where a complaint is declined for admission under sub-regulation (3), the complaint may be re-admitted within six months from the date of decline, where the complaint raises new issues for determination under the Act.

46. It is submitted that it is only upon admission of a complaint under Regulation 6(2)(a) that the DPC can undertake the following steps provided under Regulation 6(4): -a)conduct an inquiry into the complaint;b)conduct investigations;c)facilitate mediation, conciliation or negotiation in accordance with the Act and these Regulations; ord)use any other mechanisms to resolve the complaint.

47. As far as the applicants’ complaint is concerned, the DPC interrogated the issues raised in the complaint vis-à-vis the object and purpose of the DPA including its mandate in determination of complaints. According to section 3 of the DPA, the object and purpose of the Act includes: -(a)to regulate the processing of personal data;(c).to protect the privacy of individuals; and(e).to provide data subjects with rights and remedies to protect their personal data from processing that is not in accordance with this Act.

48. Based on the forgoing provisions, the learned counsel for the respondent delineated the jurisdictional boundaries of the scope of DPC starting with the basic definition of terms. Section 2 of the DPA, for instance, makes the following definitions which, according to the respondent, are critical in defining DPC’s jurisdiction: -“personal data means ‘any information relating to an identified or identifiable natural person’; and “data subject means ‘an identified or identifiable natural person who is the subject of personal data’”.

49. To contextualise the nature of complaints anticipated by Section 56 of the DPA, Regulation 4(1) and (3) of the Regulations limits the locus standi of persons who can lodge a complaint before the ODPC to: -i)the complainant in person;ii)a person acting on behalf of the complainant;iii)any other person authorized by law to act on behalf of a data subject; oriv)anonymously.

50. Based on these provisions of the DPA, it is submitted, the DPC was limited to considering and admitting a complaint that is not only lodged by a natural person, individual or their authorised representative, but also one that alleges unlawful processing of personal data relating to the said natural person. Thus, while the 1st and 2nd applicants are identifiable natural persons, the 3rd applicant is a juristic person which did not have locus to lodge the complaint under Sections 2, 3, 8(c) and 56(1) of the DPA as read with Regulation 4(1) and (3) of the Regulations.

51. The DPC’s preliminary review was, therefore, narrowed to a review of the evidence and exhibits tendered in support of the complaint to establish whether there were any allegations or evidence of unlawful processing of personal data relating to the 1st and 2nd applicants who could competently lodge the complaint. However, the DPC found that the four documents exhibited to the complaint were indicated as the property of the 3rd applicant who is not a data subject capable of possessing any personal data that can be subject to breach under the DPA.

52. The respondent has, therefore, urged this Honourable Court to preserve the philosophical and statutory orientation of the definition of a data subject by holding that the 3rd applicant could not be a complainant in the strict interpretation of the DPA.

53. According to the respondent, the interpretation of a data subject in the DPA was borrowed and is replicated in the following international legal instruments so as to provide regional and international synchrony to the application of data protection laws: -(a).The African Convention on Cyber Security and Personal Data Protection which defines a ‘data subject’ as ‘any natural personal that is subject of personal data processing’; and ‘personal data’ as ‘any information relating to an identified or identifiable natural person by which this person can be identified, directly or indirectly in particular by reference to an identification number or to one or more factors specific to his/ her physical, physiological, mental, economic, cultural or social identity’.(b).The European Union General Data Protection Regulation which defines ‘personal data’ as ‘any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person’.(c).The Convention with Regard to the Processing of Personal Data (Convention 108) of the European Union which defines ‘personal data’ as ‘any information relating to an identified or identifiable individual ("data subject")’.

54. The respondent also submitted that the legal opinion dated 10 September 2020 contained personal data relating to Mr. Simon Fraser Van Der Burg. However, Mr. Van Der Burg was neither a complainant in the applicants’ complaint nor was he represented by any of the complainants as contemplated under Regulation 4(1) and (3) of the Regulations.

55. Again, the applicants’ complaint alleged breach of the Advocate Client privilege and confidentiality by the interested parties’ actions. Coupled with the fact that the DPC did not find any personal data relating to the 1st or 2nd applicants in the material provided, the allegations of breach of the Advocate Client privilege and confidentiality are issues relating the professional conduct of advocates of this Honourable Court. It follows that such matters are under the jurisdiction of the Advocates Act cap. 16. Section 53(1) of that Act establishes a Complaints Commission with the purpose of ‘enquiring into complaints against any advocate, firm of advocates, or any member or employees thereof.’

56. Also, upon considering a complaint against an advocate under Section 53(1) of the Advocates Act, the Complaints Commission is required by Section 53(4) of the Advocates Act to satisfy itself that the advocate’s conduct constitutes a disciplinary offence. It is only upon this determination that the Complaints Commission can forward the complaint to the Disciplinary Tribunal or the Regional Disciplinary Committees established under Sections 57 and 58A of the Advocates Act respectively. Section 53(4)(b) of the Advocates Act states as follows: -(b).if it appears to the Commission whether before or after investigation that there is substance in the complaint but that the matter complained of constitutes or appears to constitute a disciplinary offence it shall forthwith refer the matter to the Disciplinary Committee for appropriate action by it under Part XI;

57. The respondent, therefore, submitted that the issues of breach of professional confidentiality are not issues under the DPA upon which the DPC could exercise jurisdiction. Rather, they are solely reserved for the institutions created under Sections 53, 57 and 58A of the Advocates Act. The learned counsel for the applicant invoked section 48 of the Interpretation and General Provisions Act which provides that: -Where a written law confers power upon a person to do or to enforce the doing of an act or thing, all powers shall be deemed to be also conferred as are necessary to enable the person to do or to enforce the doing of the act or thing.

58. In support of these submissions, the respondent’s learned counsel relied on Mwanzia versus Rhodes (Constitutional Petition E115 of 2022) [2023] KEHC 2688 (KLR) (Constitutional and Human Rights) (31 March 2023) (Judgment) where Justice A.C. Mrima, following the decision in Night Rose Cosmetics (1972) Ltd versus Nairobi County Government & 2 others (2018) eKLR’ posited that statutory provisions ousting Court’s jurisdiction must be construed restrictively.

59. The respondent also relied on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR where it was held:“…..If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”.

60. The respondent also sought to distinguish this case from the Mwanzia versus Rhodes case (supra) which the applicants relied upon and submitted that the applicants misapprehended the subject matter before the High Court and sought to apply the same to the adjudication of their complaint. From the context of the court’s judgment, the petitioner’s cause of action in the Mwanzia case was an allegation of unlawful processing of personal data belonging to petitioner and her daughter by the respondent in the suit. The applicants’ application, on the other hand, sought redress on processing of data belonging to a juristic person in the name of the 3rd applicant. The decision in Mwanzia versus Rhodes case was made in the context of a set of facts that were completely different from the ones raised in the applicants’ complaint.

61. Even then, the respondend has urged this Honourable Court to adopt the High Court’s reasoning in Mwanzia versus Rhodes where Mrima J. expressly laid down exceptional instances where parties, such as the applicants lacked the requisite jurisdiction to approach quasi-judicial authorities such as the DPC owing to their stringent and restrictive criteria and specialized jurisdiction. For this reason, the Court delineated a narrow window through which it can exercise jurisdiction on exceptional disputes that would ordinarily be delegated to quasi-judicial authorities save for jurisdictional issues.

62. It was also submitted on behalf of the respondent that the order for declaration of violation of the Constitution sought by the applicants in their complaint could not be granted by the DPC exercising her jurisdiction under the DPA. This is because the range of remedies that the DPC can issue in her determination are expressly provided under Regulation 14(3) of the Regulations and that they include: -(a).issuance of an enforcement notice to the respondent in accordance with the Act and these Regulations;(b).issuance of a penalty notice imposing an administrative fine where a respondent fails to comply with the enforcement notice;(c).dismissal of the complaint where it lacks merit;(d).recommendation for prosecution; or(e).an order for compensation to the data subject by the respondent.

63. The remedy of a declaration of violation of a constitutional right was not available to the applicants because of the jurisdictional limits of the DPC imposed by the DPA and Regulation 14(3) of the Regulations. Once again, the respondent relied on Owners of the Motor Vessel “Lillian S” versus Caltex Oil (Kenya) Ltd (supra) where the court noted:-“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means.”

64. In any event, it was urged, a prayer for declaration of violation of a constitutional right is a preserve of this Honourable Court exercising its jurisdiction under articles 23(1), 23(3)(a) and 165(3)(b) of the Constitution. Consequently, the DPC could only grant the second prayer for compensation upon resolution of the matter on its merits and upon reaching a finding that there was an infringement of the DPA.

65. In the same breath, it was submitted that the order of mandamus cannot be issued to compel the DPC to admit the complaint in the face of clear statutory provisions granting the DPC discretion to admit complaints and guiding the manner of admission of the said complaints and, to this end, the respondent relied on Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR where the Court stated as follows:“Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”The High Court cannot, however, through mandamus, compel the licensing court to either grant or refuse to grant the licence. The power to grant or refuse a licence is vested in the licensing court and unless there is a right of appeal, the High Court cannot itself grant a licence. In fact the Act provides for appeals to the High Court by persons whose licences the licensing court has refused to renew or whose licences have been cancelled.”

66. The respondent, thus, urged that the DPC adhered to her statutory and procedural mandate in considering the applicants’ complaint and that the decision was based on lawful reasons.

67. On the question of alleged violation of the principles of fair administrative action and principles of natural justice, the learned counsel for the respondent relied on Dry Associates Limited v Capital Markets Authority & Another Interested Party Crown Berger (K) LTD [2012] eKLR, where the court distilled the import and application of Articles 47 and 50 of the Constitution, and stated thus: -“62. Article 47 and 50(1) protect separate and distinct rights which should not be conflated. Although the two rights embody and give effect to the general rules of natural justice they apply to different circumstances. Article 50(1) applies to a court, impartial tribunal or a body established to resolve a dispute while Article 47 applies administrative action generally. Article 50(1) deals with matters of a civil nature while the rest of the Article deals with criminal trials.”

68. The learned counsel for the respondent also cited Republic vs. Kenyatta University Ex Parte Njoroge Humphrey Mbuthi [2015] eKLR which held:“… the law is now clear that where adverse evidence is given about a person, the person is to be afforded an opportunity to cross-examine the said witnesses…In the absence of these witnesses and as the law required that they be availed for cross-examination, there is no way the manner in which the respondent conducted its proceedings can be said to have met the threshold under Article 47 of the Constitution pursuant to which the Fair Administrative Action Act was enacted.”

69. Based on these two decisions, it was urged that tenets of fair hearing and fair administrative action could not and do not apply to the DPC whilst conducting a preliminary review under Regulations 6(1), (2) and (3) of the Regulations. This is because the philosophical underpinning of a fair hearing and fair administrative action is to permit a secondary person against whom an action has been lodged and who is likely to be prejudiced by the determination of the decision-maker based on the primary person’s action. They also cited the Supreme Court decision in Judicial Service Commission vs. Gladys Boss Shollei & Another [2014] eKLR where it was held that: -“Apart from the need for independence and impartiality, the right to a fair hearing under Article 50(1) of the Constitution encompasses several aspects. These include, the individual being informed of the case against her/him; the individual being given an opportunity to present her/his side of the story or challenge the case against her/him; and the individual having the benefit of a public hearing before a court or other independent and impartial body.”

70. The applicants’ case, it was urged, was different because when the DPC conducted the preliminary review, there was no adverse decision that was being contemplated against the respondents in the complaint. The review was simply to determine the conformity of the complaint to the Act and the suitability of the issues raised for determination by the DPC.

71. At any rate, Section 48 of the Interpretation and General Provisions Act as read with section 4(6) of the Fair Administrative Action Act, 2015 empower the DPC to conform to her own procedural rules being the Regulations. Section 4(6) of the Fair Administrative Action Act, 2015 states as follows: -(6)Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure.

72. While giving deference to the codified rules of procedure governing the Capital Markets Authority, this Honourable Court in Dry Associates Limited v Capital Markets Authority & Another Interested Party Crown Berger (K) LTD (2012) eKLR posited that: -“92. Coming to this conclusion, I must emphasise that fairness in light of Article 47 must be taken in the context of the case which include a determination of the nature of the proceedings and the statutory regime or architecture. I reject any suggestion that the petitioner would be entitled to a full oral hearing with all the accoutrements that go with it; witnesses, statements, evidence in chief, cross examination of witnesses and oral submissions.”

73. Counsel also submitted that the Court of Appeal also reiterated the need to allow administrators latitude within their regulatory scope in Kenya Revenue Authority vs. Menginya Salim Murgani Civil Appeal No. 108 of 2009 where it stated as follows: -“There is ample authority that decision making bodies other than courts and bodies whose procedures are laid down by statute are masters of their own procedures. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed.”

74. For the same argument, the respondent’s learned counsel also relied on the Court of Appel decision in Judicial Service Comission v Mbalu Mutava & another [2015] eKLR. When faced with an issue of whether the Judicial Service Commission is required to adhere with Article 47 when considering whether a petition for removal of a judge discloses a ground for their removal under Article 168(4) the court stated that: -“(34)All these cases including Nancy Makhoha Baraza (Supra) show that an investigation is not a trial and that cross-examination of witnesses, if called, is a rare occurrence. Unless the empowering law provides otherwise, the decision whether or not to summon witnesses and the decision to allow or not allow the cross-examination of witnesses, is at the sole discretion of the investigating body. Indeed, the technical rules of evidence with the attendant right to cross-examination do not form part of the natural justice rules or in this case, part of fair administrative action.[40]The duty to give reasons and the nature and extent of the reasons envisaged by article 47(2) is dependent on the character and limits of the administrative discretion conferred on the administrator by the Constitution or law and its application to the facts of the case…”

75. The respondent’s counsel, thus, urged the court to find that the DPC’s decision made on 26 September 2023 was lawful, fair, based on DPC’s statutory mandate and that it neither violated any principles of law nor the applicants’ rights as alleged or at all.

76. As far as the question whether the applicants’ complaint was res judicata is concerned, it was urged on behalf of the respondent that the applicants’ complaint that is subject of these proceedings is similar to their complaint dated 20 July 2022. The complaint dated 20 July 2022 revealed that the allegations raised against the interested parties were sharing and disclosing of sensitive personal data belonging to various data subject without their consent. The four exhibits produced in the complaint dated 27 July 2023 formed part of the exhibits that were listed in the complaint dated 20 July 2022.

77. The DPC determined the applicants’ complaint dated 20 July 2022 and rendered its determination on 6 January 2023 in complaint No. 677 of 2022. However, the applicants sought for judicial review orders in Milimani HCJR No. E028 of 2023- Gichuhi & 2 others v Data Protection Commissioner; Mathenge & another (Interested Parties) (Judicial Review E028 of 2023) [2023] KEHC 17321 (KLR) (Judicial Review) (12 May 2023) (Judgment) where Honourable Justice J. Chigiti (S.C.) quashed the determination dated 6 January 2023 and ordered the DPC to re-consider the complaint.

78. Consequently, the DPC re-admitted the applicants’ complaint dated 20 July 2022, considered it and rendered her determination on 17 June 2023. The two previous decisions dated 6 January 2023 and 17 June 2023 are based on a similar set of facts and were made against the same respondents as the complaint that is the subject of this suit.

79. In arguing that the complaint was res judicata, the learned counsel for the respondent relied on Diocese of Eldoret Trustees (Registered) v Attorney General (on behalf of the Principal Secretary Treasury) & another [2020] eKLR, Odeny J while quoting Henderson vs Henderson (1843) 67 ER 313 stated as follows:-“….where a given matter becomes the subject of litigation in, and adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigations in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence or even accident omitted part of their case. The pleas of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time”.

80. As to which party should bear the costs, the learned counsel for the respondent urged that as a general rule, costs follow the event and the successful party is to be awarded costs, unless the court has a good reason to direct otherwise. Based on the circumstances and multiplicity of suits which point to blatant abuse of this Court’s process, it was urged on behalf of the respondent that costs should be awarded to the respondent.

1st Interested party’s submissions 81. The 1st interested party began her submissions by stating that she joined the firm of 3rd applicant’s firm of advocates as a legal trainee or pupil in 2019. She subsequently resigned from her position as an associate advocate of the law firm on 8 April 2022 and that this is when her troubles with the firm began.

82. On 20 July 2022, the applicants filed a complaint with the respondent seeking the following orders:a)Issuance of an enforcement notice to Florence Wamuyu Mathenge and Ambrose Ndungu Waigwa to delete from their emails and compute devices or any other devices all data obtained as noted in the attachment to this complaint and to provide access to the Data Commissioner to inspect their personal and work computers and delete all unauthorized documents particularized in the Complaint’s Affidavit.b)Recommendations for Prosecutions in violation of the Provisions of Section 72 (3) as read together Section 72 (4) of the Data Protection Act.c)Issuance of a penalty notice imposing an administrative fine where a respondent fails with the enforcement notice. d) An order for compensation for the breach.“A complaint has been lodged against Florence Wamuyu Mathenge and Ambrose Ndungu Waigwa at the Advocates Disciplinary Tribunal of the Law Society of Kenya on 19th July 2022 for professional misconduct and breach of advocate client privilege”.

83. The complaint was dismissed on 6 January 2023. The applicants then proceeded to file a judicial review cause against the respondent’s determination in this Honourable Court in application no. E028 of 2023 on the basis that the decision was bad in law for the following reasons.“a)The respondent lacked jurisdiction by virtue of effluxion of time.b)The respondent excluded the applicant’s evidence.c)The respondent exhibited apparent bias.d)The respondent violated the applicant’s principles of natural justice and Fair Administrative justice.”

84. This Honourable Court (Chigiti, J.) delivered its judgement in favour of the applicants and quashed the decision made by the respondent on the basis that “the decision of the Data Protection Commission dated 6th January 2023 was rendered outside time without jurisdiction and therefore a nullity.” Further the court noted that, “no matter how logical sound, reasonable or persuasive the Respondents finding is, the same is standing on quicksand”.The decision is now a subject of appeal in the Court of Appeal in Civil Appeal No. E377 of 2023; the appeal is pending for hearing and determination.

85. In Compliance with the judgment of this Honourable Court, the Respondent readmitted the applicants’ complaint and issued a second determination dated 17 June 2023. Once again, the applicant’s complaint was dismissed. The applicants have lodged an appeal against the decision in this Honourable Court as High Court Civil Appeal No. HCCA E641 of 2023 Allen Waiyaki Gichuhi versus Florence Wamuyu Mathenge.

86. While that appeal has not been heard and determined, the applicants filed the second complaint dated 27 July 2023 which is now the subject of this suit. According to the 1st interested party, the first complaint dated 20 July 2022 and the second complaint dated 27 July 2023 are similar except that the second one has been crafted as a constitutional petition. The two complaints are based on the same facts.

87. Like the respondent, the 1st interested party has addressed the question of jurisdiction of the respondent to entertain the applicants’ complaint, as amongst issues that this Honourable Court ought to determine. Other issues which she has singled out are whether the second complaint dated 27 July 2023 is barred on the ground that it is res judcata and whether the instant motion amounts to an abuse of the due process of this Honourable Court.

88. On jurisdiction, the 1st interested party has urged that the respondent’s role is defined in sections 56, 57, 58, 59, 60, 61, 62, 63, 65, and 66 of the DPA. The question that needs to be answered is the extent of the respondent’s powers with respect to investigations. The 1st interested party’s answer to this question is that it is not in dispute that the applicants have filed a complaint seeking constitutional remedies. However, the respondent has no powers to grant constitutional remedies but her powers are expressly limited in terms of the provisions of sections 62, 63 and 65 of the DPA which provide as follows: 62. (1)If the Data Commissioner is satisfied that a person has failed or is failing as described in section 58, the Data Commissioner may issue a penalty notice requiring the person to pay to the Office of the Data Commissioner an amount specified in the notice.

63. In relation to an infringement of a provision of this Act, the maximum amount of the penalty that may be imposed by the Data Commissioner in a penalty notice is up to five million shillings, or in the case of an undertaking, up to one per centum of its annual turnover of the preceding financial year, whichever is lower.

65. (1)A person who suffers damage by reason of a contravention of a requirement of this Act is entitled to compensation for that damage from the data controller or the data processor.

89. The 1st interested party, therefore, submits that the respondent can only order payment of a fine or compensation to a data subject upon a finding that a data processor has contravened the DPA. In this submission, the 1st interested party relied on the Supreme Court decision in Nicholus v Attorney General & 7 others; National Environmental Complaints Committee& 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023) (Judgment) at paragraphs 98, 101 and 104 where the Court held as follows:“These provisions must be read in contrast to those in EMCA which provide for instances where disputes pertaining to compliance with breach and/or violations of the provisions of EMCA and which disputes ought to be lodged with and/or addressed by NET, which is established pursuant to the provisions of Section 125 of the said Act. Redress for constitutional violations is not part of that mandate.As we had earlier stated, in our view, that fact notwithstanding, there is nothing that precludes the adoption of a nuanced approach, that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. That is also why Section 9(4) of the Fair Administrative Action Act creates the exception that exhaustion of administrative remedies may be exempted by a court in the interest of justice upon application by an aggrieved party. Having considered the above complaints, we reiterate our earlier finding in this judgment that the mandate and jurisdiction to determine these questions lie with the ELC under Articles 22, 23(3) and 162(2)(b) of the Constitution as read with Section 4(1) of the Environment and Land Act. We say so because neither the NET, EPRA nor EPT have the jurisdiction to determine alleged violations of the Constitution. That right to access the court for redress of alleged constitutional violations, should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms. We say this persuaded by the elegant reasoning in William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR where the High Court (Achode (as she then was), Nyamweya (as she then was), & Ogola, JJ) stated:“In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”The 1st interested has urged this Honourable Court to follow this decision and hold that the respondent has no original or appellate jurisdiction to entertain a complaint seeking redress under the Constitution.

90. As far as the question of res judicata is concerned, it is the 1st interested party’s case that the applicant filed two complaints with similar facts and seeking redress from the respondent. In these circumstances, it is urged, the applicants’ second complaint is subject to the doctrine of res judicata. The 1st interested party has cited Bernard Mugo Ndegwa v James Nderitu Githae and 2 others (2010) eKLR in support of his submissions. In that case, the court held that for a case to be held to be res judicata, the matter in issue must identical to the suit that has been determined; the parties must be the same and they must be claiming under the same title. There has to be concurrence of jurisdiction and finality in the determination of the previous suit.

91. The 1st interested party also cited the Supreme Court decision in John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others (2021) eKLR in which the court held as follows:“(81)We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively…(82)If we were to find that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of Article 159 of the Constitution in both civil and criminal litigation, and its application now embedded in all procedural statutes. Further Article 50 on right to fair hearing and Article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other.

92. Other authorities cited for the same argument of the need to bring litigation to finality are Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR and Baker, Barney Wilcox (1937) "Judgments: Quasi-Judicial Bodies; res judicata," Kentucky Law Journal: Vol. 25: Iss. 4, Article 7. In this latter authority, the author emphasized the application of the doctrine on quasi-judicial bodies such as the respondent and noted:“Application of the doctrine of res judicata to findings of quasi-judicial bodies is not of late origin. This rule which forbids the reopening of a matter once judicially determined by a duly authorized court was not restricted to the judgments and decrees of such a court even under the early common law.3 The courtroom has never been a very pleasant retreat for men whose differences were the result of honest misunderstanding. These differences have rested mainly in a mistake of fact, and, rather than submit them to courts, and suffer the burdens of costs and delay which have always attached to courts, men early sought solution of them through voluntary boards of arbitration. Awards returned by them upon the questions submitted for their determination were as binding as judgments of a duly authorized court and could be successfully pleaded at common law in bar of any later action involving the same matter and between the same parties.”

93. Accordingly, the 1st interested party has urged that the principle of res judicata applies to the respondent as a quasi-judicial body and that the second complaint was barred due to the same principle.

Analysis and determination 94. At the very outset, my attention has been caught by the applicants’ pleadings in paragraphs 26, 27 and 28 of the grounds on the face of the application. In those paragraphs, the applicants have pleaded as follows:“Judicial Review Proceedings under the Article 47 of the Constitution as read together with the Fair Administrative Actions Act 26. These proceedings have been brought pursuant to the provisions of Article 47 as read together with the Fair Administrative Actions Act. Therefore, leave need not be sought to commence judicial review proceedings.

27. The Law Reform Act does not apply to Article 47 of the Constitution and the FAAA: per Dry Associates Ltd v Capital Markets Authority and Another, (2012) eKLR.

28. There is no requirement for leave to be obtained before judicial review proceedings are instituted under the Fair Administrative Action Act: per James Gacheru Kariuki & 22 others v Kiambu County Assembly & 3 others (2017) eKLR.”

95. It is apparent from these averments that although this is a judicial review application, the applicants deliberately avoided seeking leave that, ordinarily, is a precursor to instituting a substantive motion for judicial review reliefs. As far as I understand the applicants, their justification for the course they have adopted is, first, leave is not necessary when a judicial review application is made under Article 47 of the Constitution and the Fair Administrative Action Act and, second, “the Law Reform Act does not apply to Article 47 of the Fair Administration Action Act”. I suppose they mean that, in a judicial review application, both article 47 and the Fair Administrative Action Act operate independently, free from the provisions of the Law Reform Act. In support of their position they have cited the decisions of Dry Associates Ltd v Capital Markets Authority and Another, (2012) eKLR and James Gacheru Kariuki & 22 others v Kiambu County Assembly & 3 others (2017) eKLR.

96. None of the parties submitted on this issue of leave but it is a point I cannot ignore not least because it is covered in the applicants’ pleadings but, more importantly, it is incumbent upon this Honourable Court to satisfy itself that the application before it is properly conceived. Inevitably, I have to determine this point in limine.

97. The question whether, in the wake of article 47 of the Constitution and the enactment of the Fair Administrative Action Act, it is still necessary for an applicant to obtain leave before instituting a substantive motion for judicial review, is a question that I have had occasion to interrogate in previous applications in which it has arisen. As a matter of fact, in Nation Media Group Limited v Commissioners Media Council Complaints Commission; Njoroge & another (Interested Parties) [2024] KEHC 3417 (KLR) which is the latest case in which this issue arose, I considered, relatively at length, the case of James Gacheru Kariuki & 22 Others versus Kiambu County Assembly & 3 Others (supra) which, as noted, is one of the cases that the applicants have relied upon in support of the position that leave has been rendered otiose by article 47 of the Constitution and the Fair Administrative Action Act.

98. At the risk of sounding repetitive, I adopt in this judgment, much of my thoughts in Nation Media Group Limited versus Commissioners Media Council Complaints Commission (supra) on this particular question for leave. It is fair to state, at the outset, that it is obvious that article 47 and the Fair Administrative Action Act, 2015 which, as its preamble states, is itself “an Act of Parliament to give effect to Article 47 of the Constitution, and for connected purposes”, have influenced the school of thought that leave is no longer necessary in an application for judicial review. It is in this school of thought that decisions in such cases as Felix Kiprono Matagei vs Attorney General (2021) eKLR); James Gacheru Kariuki & 22 others v Kiambu County Assembly & 3 others (supra); and, Nirmal Sing Sidhu & 8 others v Director General, National Environment Management Authority & another; Lavington United Church (lnterested Party) (2022) eKLR belong.

99. In the Felix Kprono case, for instance, Korir J. (as he then was) rooted for the repeal of sections 8 and 9 of the Law Reform Act and for the Chief Justice to make rules that would guide the institution and conduct of judicial review proceedings. Section 10(2) of the Fair Administrative Action Act provides that such rules may be made. It reads as follows: 10. (2)The Chief Justice may make rules of practice for regulating the procedure and practice in matters relating to judicial review of administrative action. (Emphasis added).

100. My position has been that, in the absence of a repeal of sections 8 and 9 of the Law Reform Act and, in the absence of the rules envisaged in section 10. (2) of the Fair Administrative Action Act, there is no reason why these provisions of the law should not be applied. The two provisions of the Law Reform Act read as follows:8. (1)The High Court shall not, whether in the exercise of its civil or criminal jurisdiction, issue any of the prerogative writs of mandamus, prohibition or certiorari.(2)In any case in which the High Court in England is, by virtue of the provisions of section 7 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, of the United Kingdom empowered to make an order of mandamus, prohibition or certiorari, the High Court shall have power to make a like order.(3)No return shall be made to any such order, and no pleadings in prohibition shall be allowed, but the order shall be final, subject to the right of appeal therefrom conferred by subsection (5) of this section.(4)In any written law, references to any writ of mandamus, prohibition or certiorari shall be construed as references to the corresponding order, and references to the issue or award of any such writ shall be construed as references to the making of the corresponding order.(5)Any person aggrieved by an order made in the exercise of the civil jurisdiction of the High Court under this section may appeal therefrom to the Court of Appeal. 9. (1)Any power to make rules of court to provide for any matters relating to the procedure of civil courts shall include power to make rules of court—(a)prescribing the procedure and the fees payable on documents filed or issued in cases where an order of mandamus, prohibition or certiorari is sought;(b)requiring, except in such cases as may be specified in the rules, that leave shall be obtained before an application is made for any such order;(c)requiring that, where leave is obtained, no relief shall be granted and no ground relied upon, except with the leave of the court, other than the relief and grounds specified when the application for leave was made.(2)Subject to the provisions of subsection (3), rules made under subsection (1) may prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates.(3)In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

101. My humble view on these two provisions has been that until such a time that they are repealed, assuming there is a case for their repeal, these provisions of the law are not only valid law but that they are also available for application in judicial review proceedings.

102. That notwithstanding, the notion that there is an intention in the Fair Administration Act to repeal sections 8 and 9 of the Law Reform Act, as suggested in the Felix Kiprono Matagei vs Attorney General (supra) does not appear anywhere in the Fair Administrative Action Act. On the contrary, the Act not only acknowledges but it also embraces the law and the practices that existed prior to its enactment with respect to judicial review applications. This is apparent in section 14 (2) (a) of the Act. For better understanding, it is necessary that I reproduce the entire section here; it reads as follows:14. Transition provisions(1)In all proceedings pending whether preparatory or incidental to, or consequential upon any proceedings in court at the time of the coming into force of this Act, the provisions of this Act shall apply, but without prejudice to the validity of anything previously done.(2)Despite subsection (1)–(a)if, and in so far as it is impracticable in any proceedings to apply the provisions of this Act, the practice and procedure obtaining before the enactment of this Act shall be followed; and(b)in any case of difficulty or doubt the Chief Justice may issue practice notes or directions as to the procedure to be adopted. (Emphasis added).

103. Following this provision, it is legitimate to ask, if “the practice and procedure obtaining before the enactment of this Act” are founded on sections 8 and 9 of the Law Reform Act, how shall that “practice and procedure” be followed if these provisions of the law are repealed?

104. I need not belabour the point save to say that the fact that section 14(2)(a) of the Fair Administrative Action Act still provides a window for the application of the practice and procedure obtaining before the enactment of the Act is a demonstration enough that, in enacting the Fair Administration Action Act, Parliament did not intend to repeal sections 8 and 9 of the Law Reform Act.

105. And for the avoidance of doubt, section 12 of the Fair Administrative Action Act is even clearer that the Act is in addition to and not in derogation of common law principles which, no doubt, are the origin of the requirement for leave. This section reads as follows: 12. Principles of common law and rules of natural justiceThis Act is in addition to and not in derogation from the general principles of common law and the rules of natural justice.

106. My reading of sections 12 and 14 of the Fair Administrative Action Act is that the intention of the legislature is to sustain rather than do away with the practices and procedures existing prior to the enactment of the Fair Administrative Action Act which, of course, would include the need for leave in applications for judicial review. If there was any intention to repeal any of the provisions of the Law Reform Act, including sections 8 and 9 of the Act, there is no better place that the legislature could have expressed that intention than in the Fair Administration Act itself, more particularly in the transitional provisions as is ordinarily the case when a new Act seeks to terminate the operation of an old Act or certain provisions thereof.

107. To the extent that section 12 of the Act recognises application of the principles of common law, the position postulated in James Gacheru Kariuki & 22 others v Kiambu County Assembly & 3 others (supra) that “the Constitution expressly constitutionalizes administrative justice as a right and removes it from the clutches of Common Law” appears to be contrary to this provision of the law unless, of course, it could be argued that section 12 of the Fair Administration Act is unconstitutional. But as I noted in discussing that case, there was no such suggestion of unconstitutionality.

108. It is also worth noting that even the Constitution itself has not rendered these provisions of the law redundant. It has instead embraced them, the only caveat being that these past laws and practices should be construed with such “alterations, adaptations, qualifications and exceptions” necessary to bring them into conformity with the Constitution. This is what section 7 (i) of the 6th Schedule to the Constitution says: 7. Existing laws(1)All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.

109. Thus, the Constitution does not purport to do away with the preexisting laws wholesale; as long as those laws are in existence, they should be interpreted and applied in a manner that sits well with the Constitution.

110. This then begs the question; is there anything intrinsic in sections 8 and 9 of the Law Reform Act and, in particular, the requirement for leave to apply for judicial review reliefs that is not aligned with the Constitution? And, assuming there is such an inconsistency, wouldn’t the proper question be how these provisions of the law can “be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it (or them) into conformity with this Constitution” rather than repeal them altogether?

111. None of the decisions cited in support of the argument that leave is unnecessary has come out to declare these provisions or the requirement for leave unconstitutional. Of course, they could not because such a declaration would be untenable; it would be untenable because it is simply implausible that the requirement for leave to file a judicial review application can be construed to be contrary to Constitution. There is a rationale behind this requirement which, as far as I can gather, was not discussed in any of the authorities cited by the applicants in support of their position. I will discuss this rationale for leave in due course.

112. Assuming the requirement for leave is a mere procedural technicality as the court in James Gacheru Kariuki & 22 others v Kiambu County Assembly & 3 others (supra) suggested, it is worth noting that it was acknowledged in the same case that the court was bound by the Court of Appeal decision in Nicholas Kiptoo Arap Korir Salat v IEBC and Others [2013] Eklr where it was held that despite the provisions of Article 159 of the Constitution to the effect that justice shall be dispensed without any undue regard to technicalities, “the Constitution did not aim to torpedo all established rules of procedure”. The court considered this position to be what it regarded as “a common-sense approach”.

Articles 23 and 47 of the Constitution 113. Proponents of the position that leave is unnecessary arguments have posited that as long as judicial review reliefs can be granted under Article 23(3) (f) and that the right to a fair administrative action is a constitutional right under Article 47 of the Constitution, it would be superfluous to seek for leave to file an application for judicial review. Indeed, I understand the decisions in James Gacheru Kariuki & 22 others v Kiambu County Assembly & 3 others and Nirmal Sing Sidhu & 8 others v Director General, National Environment Management Authority & another; Lavington United Church (interested party) to be saying that rather than take what may appear to some as a relatively longer and winding route of seeking leave before filing a substantive motion for judicial review reliefs, it is possible to take a more direct route and file a constitutional petition for the same reliefs, as an alternative.

114. In considering this postulation, it is necessary to give due attention to Articles 23 (3) and 47 of the Constitution. Article 23 (3) reads as follows: 23. (3)In any proceedings brought under Article 22, a court may grant appropriate relief, including—(a)a declaration of rights;(b)an injunction;(c)a conservatory order;(d)a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;(e)an order for compensation; and(f)an order of judicial review.

Article 47, on the other hand, states: 47. Fair administrative action(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and(b)promote efficient administration.

Article 22 to which reference has been made in article 23 is about proceedings for the enforcement of the Bill of Rights.

115. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 that have been made on the authority of Article 22 (3) and which provide guidance on how the proceedings with respect to enforcement of Bill of Rights are to be initiated, conducted and concluded, provide that the court proceedings may only be initiated by way of a petition. This is so stated in rule 10(1) which states as follows:10(1)an application under rule 4 shall be by way of a petition as set out in Form A in the schedule with such alterations as may be necessary.

116. The application under rule 4 is, of course, an application by a person affected by denial of rights or fundamental freedom provided under the Constitution or where such rights or fundamental freedom are alleged to have been denied, violated or infringed or threatened. Such an aggrieved person may file a petition before this Honourable Court.

117. To my understanding, it is in the determination of such a petition that under Article 23 (3) (f) that a court may grant a judicial review order as an appropriate relief, amongst other orders that the court may be disposed to grant in the vindication of an applicant’s rights.

118. Neither the Constitution nor the Constitution of Kenya (Practice and Procedure) Rules 2013 provides that an applicant for judicial review reliefs may now proceed to court by way of a petition instead of filing an application under order 53 rule 1 of the Civil Procedure Rules. What I understand Article 23 (3) (f) to be saying is that in a petition for enforcement of the Bill of Rights, the court is not limited as to the nature and extent of reliefs it may grant to an aggrieved petitioner. Although such reliefs would include a judicial review relief, it does not thereby follow that the procedure for obtaining such reliefs is deposed to the extent that it is no longer necessary to file an application for judicial review as contemplated under Section 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules.

119. Article 23 (3) (f) ought not to be interpreted as creating room for applications for judicial review to be now fashioned as constitutional petitions. By the same token, the same article should not be read as supplanting the procedure to obtain judicial review reliefs.

120. If it was to be argued that one can now file a constitutional petition for judicial review reliefs instead of an ordinary application for judicial review only because these reliefs can be granted under article 22(3)(f) of the Constitution, then nothing stops a litigant from filing a constitutional petition for compensation of damages as a result of, for instance, a running down accident or a wrongful dismissal from employment or a material damage or such other claims where an order for compensation can be made against the state since, according to Article 22(3) (e), the court may make an order for compensation in a constitutional petition filed under Article 22 of the Constitution.

121. This is the absurdity that would ensue if the courts were to proceed on the assumption that, besides filing a judicial review application in accordance with sections 8 and 9 of the Law Reform Act and order 53 of the Civil Procedure Rules, an applicant has an alternative path of filing a constitutional petition for similar judicial review reliefs that he would have sought and, perhaps, obtained in an ordinary judicial review application. Needless to say, procedural rules are necessary if only to avoid chaotic litigation and, for that reason, they must be observed as long as their observance does not fit what the Constitution has described as “undue regard to procedural technicalities.”

122. And not every suit that ought to have been filed as such should be wittingly crafted as a constitutional petition solely to evade the procedural strictures that come with ordinary suits and which, for one reason or another, a litigant may not be in a position to comply with or which he simply wants to skirt around. As much as the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 are liberal in the manner of lodging petitions, the sanctity of constitutional petitions must be jealously guarded.

123. The sanctity of constitutional petitions in addressing violations of the Constitution and constitutional rights is a subject that was addressed by the Privy Council in Kemrajh Harrikissoon Versus Attorney General of Trinidad & Tobago (1979) 3WLR 62. The brief facts of that case were that the teaching service commission of Trinidad and Tobago, acting under regulation 135(1) of the public service commission regulations 1966 (as adopted and amended by the commission in 1968), made an order transferring the appellant teacher to another school, without giving him the three months’ notice that was required unless the exigencies of the teaching service did not so permit. The appellant considered that the transfer was intended as a punishment for allegations he had made of improprieties at the first school and that the exigencies of the teaching service did not justify his transfer on less than three months’ notice. Instead of availing himself of the review procedure provided by regulation 135, he applied to the High Court under section 6 of the Constitution of 1962 for a declaration that the human rights and fundamental freedoms granted to him by section 1 of the Constitution had been violated. The High Court rejected the appellant’s claim. He appealed to the Court of Appeal of Trinidad and Tobago, which dismissed his appeal. When the matter went to the Privy Council, the latter held as follows:“The notion that wherever there is a failure by an organ of the Government or a public authority or public officer to comply with the law this necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by Chapter I of the Constitution is fallacious. The right to apply to the High Court under Section 6 of the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for normal proceedings for invoking judicial control of administrative action. In an originating application to the High Court under Section 6(1), the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedoms.” (Emphasis added).

124. I cannot put it any better save to reiterate that if courts were to entertain ordinary suits as constitutional petitions only because the Constitution allows the courts to grant reliefs that would otherwise be made in those ordinary suits, constitutional petitions would lose their sanctity as the means by which to protect fundamental rights and freedoms under the Constitution. The prescription either by Acts of Parliament or rules made thereunder of the means by which particular suits should be filed is meant to, among other reasons, bring order to litigation or court process and avoid the kind of chaos that would result if all those suits were to be filed as constitutional petitions.

Rationale for “leave” 125. The last point I wish to address on the issue of the need for leave to file judicial review reliefs is the rationale or the reason why leave is necessary in the first place. This particular issue was not addressed in the decisions cited in support of the applicants’ position that leave is not necessary in judicial review applications filed under the Fair Administrative Action Act or at all.

126. In AAR Insurance versus Public Procurement Administrative Review Board, Secretary IEBC and Zamara Risk and Insurance Brokers Limited Interested Parties (supra) I dealt with the question why leave is necessary irrespective of whether one invokes the provisions of the Fair Administrative Action Act to the exclusion of sections 8 and 9 of the Law Reform Act.

127. In that case, I noted that the need for leave has been explained in several decisions by the courts in England which would be relevant to our local jurisdiction by virtue of section 8 (2) of the Law Reform Act, cap. 26. That section reads: 8. (2)In any case in which the High Court in England is, by virtue of the provisions of section 7 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, (1 and 2, Geo. 6, c. 63) of the United Kingdom empowered to make an order of mandamus, prohibition or certiorari, the High Court shall have power to make a like order.

128. In Cocks v Thanet District Council (1983) 2 AC 286 at page 294F, Lord Bridge said that leave is one of the safeguards built into the Order 53 to protect from harassment public authorities on whom Parliament has imposed a duty to make public law decisions. And in O’Reilly v Mackman (1983)2 AC 237 Lord Diplock said at p. 281 A-C that the requirement of a prior application for leave to be supported by full and candid affidavits verifying the facts relied on is an important safeguard against groundless or unmeritorious claims that a particular decision is a nullity.

129. Talking about the procedure for applying for judicial review prior to and after the introduction of the new Order 53 of 1977 and, in particular, the retention of the requirement for leave, Lord Diplock had this to say:“First, leave to apply for the order was required. The application for leave which was ex parte but could be, and in practice often was, adjourned in order to enable the proposed respondent to be represented, had to be supported by a statement setting out, inter alia, the grounds on which the relief was sought and by affidavits verifying the facts relied on; so that a knowingly false statement of fact would amount to the criminal offence of perjury. Such affidavit was also required to satisfy the requirement of uberrima fides, with the consequence that failure to make on oath a full and candid disclosure of material facts was of itself a ground for refusing the relief sought in the substantive application for which leave had been obtained on the strength of the affidavit. This was an important safeguard, which is preserved in the new Order 53 of 1977. The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision. In contrast, allegations made in a statement of claim or an indorsement of an originating summons are not on oath, so the requirement of a prior application for leave to be supported by full and candid affidavits verifying the facts relied on is an important safeguard against groundless or unmeritorious claims that a particular decision is a nullity. (Emphasis added).

130. The requirement for leave has always provided procedural limitations which, in turn, provide a necessary protection to public authorities against claims which it is not in the public interest for the courts to entertain. It is one of the safeguards imposed in the public interest in respect of groundless, unmeritorious or tardy attacks on the validity of decisions made by public authorities in the field of public law.

131. In IRC v. National Federation of Self-Employed and Small Businesses Ltd (1982) AC 617 Lord Diplock explained the need for leave this way:“Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”

132. The two purposes identified here are to save court’s time and so as not to leave public authorities in a state of uncertainty as to whether they can safely proceed. In the same case, Lord Scarman saw the need for leave as ‘an essential protection against abuse of legal process’. In his words “It enables the court to prevent abuse by busybodies, cranks and other mischief makers”. (see pages 653 and 113). Woolf, J. has referred to the need for leave as “the unique statutory means by which the court can protect itself against abuse of judicial review.” (R v Secretary of State for the Environment, ex p Greater London Council (1985) Times, 30 December.

133. These authorities are clear that the requirement for leave serves a specific purpose in order to meet the ends of justice not least to protect the court itself from abuse of the process. The requirement for leave should be seen neither as an idle nor a bureaucratic hurdle by the state to restrict a litigant from accessing the seat of justice. It is a mandatory procedural step without which the court would not be able to exercise the discretion with which it is clothed either to allow or decline the institution of the substantive suit for judicial review reliefs.

134. Contrary to the suggestion by the anti-leave proponents that the requirement of leave is costly and only serves to delay the hearing and determination of a judicial review application when the constitution demands that justice must be dispensed expeditiously, the leave stage is a procedure which provides an expeditious method according to which the court sifts out cases with no chance of success at a relatively little cost to the applicant and no cost to any prospective respondent. Back home, section 8 of the Law Reform Act provides the statutory basis upon which the jurisdiction to grant judicial review reliefs of mandamus, prohibition or certiorari is exercised. And as to how an application for these judicial review reliefs should be made, section 9 of the Law Reform Act has delegated that task to the authority empowered to make rules relating to procedures of civil courts but it is also categorical that such rules must include the requirement for leave before an application for certiorari, prohibition and mandamus is made. To emphasise my point, it is necessary that I reproduce this provision of the law here again; it reads as follows: 9. Rules of court(1)Any power to make rules of court to provide for any matters relating to the procedure of civil courts shall include power to make rules of court—(a)prescribing the procedure and the fees payable on documents filed or issued in cases where an order of mandamus, prohibition or certiorari is sought;(b)requiring, except in such cases as may be specified in the rules, that leave shall be obtained before an application is made for any such order;(c)requiring that, where leave is obtained, no relief shall be granted and no ground relied upon, except with the leave of the court, other than the relief and grounds specified when the application for leave was made.(2)Subject to the provisions of subsection (3), rules made under subsection (1) may prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates.(3)In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

135. Section 9 (1) is of particular relevance to these proceedings and it is, no doubt, the statutory basis of Order 53(1) of the Civil Procedure Rules. It provides as follows: 1. (1)No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.

136. This rule leaves no doubt that grant of leave is a precondition to filing of a substantive motion for the prerogative orders of mandamus, prohibition or certiorari; without such a leave the substantive application cannot be entertained.

137. For the reasons I have given, the omission to invoke section 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules does not necessarily imply that the applicant is thereby exempted from complying with the procedure for invoking the judicial review jurisdiction of this Honourable Court. As long as an applicant is seeking judicial review reliefs, irrespective of whether they are the traditional reliefs of mandamus, certiorari and prohibition or the expanded ones under section 11 of the Fair Administrative Actions Act, No. 4 of 2015, he is bound by the procedure for filing the application for such reliefs.

138. Granted, the Fair Administrative Actions Act does provide for application for leave as the preliminary step in lodging an application for judicial review. However, none of the provisions in the Fair Administrative Action Act expressly ousts the application of Order 53 (1) of the Civil Procedure Rules in applications for judicial review. The specific provision in the Fair Administrative Actions Act relating to procedure is section 9 of the Act; it reads as follows:9. Procedure for judicial review.(1)Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.(2)The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.(3)The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).(4)Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.(5)A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.

139. The Act does not say how the application is to be made and, in my humble view, this is a deliberate omission because the procedure for invoking judicial review jurisdiction remains Order 53 of the Civil Procedure Rules.

140. It is worth repeating that the common law principles upon which the requirement for leave was founded still subsist today and are as much relevant today as they were before. I suppose it is for this reason that sections 12 and 14(2) of the Fair Administrative Actions Act, to which reference has been made before in this judgment, are express that the Act is complementary to and not a substitute of the general principles of common law.

141. Sections 8 and 9 of the Law Reform Act will remain the anchor of the leave requirement. The anticipated rules under section 10 (2) of the Fair Administrative Action Act or the regulations under section 13 of the same Act will, no doubt, align themselves with this position. Without pretending to preempt the course those rules will take on the question of leave, it is legitimate to expect, at the very least, that these rules, being subsidiary legislation, will not deviate from the primary or parent law that makes leave a mandatory requirement in applications for judicial review reliefs.

142. Though delivered almost 10 years before the promulgation of the Constitution of Kenya 2010 and 15 years before the enactment of the Fair Administration Act, the decision of the Court of Appeal in Republic versus Communications Commission of Kenya(as a successor to Managing Director Kenya Posts & Telecommunications Corporation and Kenya Posts & Telecommunications (supra) would be relevant to issues at hand, and, in particular, on the question of whether the Law Reform Act would be subject to any other written law and, if so, how such a law to which it is subject could possibly be worded.

143. In that case, apart from the requirement of leave in judicial review applications, the Court of Appeal considered the question whether judicial review proceedings filed to compel Kenya Posts and Telecommunications Corporation to reinstate air frequencies that had been given to East African Television Networks but which had been arbitrarily withdrawn were subject to section 109(a) of the Kenya Posts and Telecommunication Act. This section required a thirty-day notice to be served upon the managing director of the corporation before suing the corporation. The Court held that judicial review proceedings could not be subject to such a provision and, in so doing, cemented the place of sections 8 and 9 of the Law Reform Act in judicial review proceedings. It held, inter alia, as follows:“There is however, the fact that power to issue judicial review orders of mandamus, prohibition and certiorari is given to the High Court by a separate Act of Parliament, namely the Law Reform Act. We have already referred to sections 8 and 9 of the Act and we need not set them out. Those sections set out in full the circumstances under which the High Court is entitled to issue the orders and what factors the High Court is bound to take into account. Leave is to be obtained before an application is filed and once leave is so obtained only the reliefs set out in the application for leave and the grounds relied on in that application can be argued or granted unless the High Court otherwise allows. In an application for certiorari leave cannot be granted unless the application is made within six months from the date of the decision sought to be quashed. All these provisions are contained in the Law Reform Act and the Act does not say that these provisions are subject to the provisions of any other Act of Parliament. There is no provision anywhere in sections 8 and 9 of the Act that where another Act of Parliament requires that notice of intention to sue be served, then such a notice must be served before leave is applied for. Section 8(4), for example, provides for other written laws and it says:"In any written law, references to any writ of mandamus, prohibition or certiorari shall be construed as references to the corresponding order and references to the issue or award of any such writ shall be construed as references to the making of the corresponding order."So the legislature specifically had in mind other written laws; yet it never subjected the provisions of sections 8 and 9 to those other written laws. Section 109(a) of the KP & TC Act, which we have already set out does not say that it shall apply notwithstanding the provisions of any other written law. Clearly there was no basis for subjecting the provisions of sections 8 and 9 of the Law Reform Act to the provision in section 109 (a) of the KP & TC Act.” (Emphasis added).

144. By parity of reasoning, if it was the intention of the legislature that the Law Reform Act and, in particular, sections 8 and 9 of that Act would be subject to the Fair Administration Act, it would have expressly stated so in this latter Act. It is beyond debate that in enacting the Fair Administration Act, Parliament was well aware of the existence of the Law Reform Act in general and sections 8 and 9 thereof, in particular.

145. In conclusion, I would say that there is no doubt that the reasons for the requirement of the leave still subsist in our current circumstances notwithstanding the apparent developments in the area of judicial review. There is no doubt, for instance, that with the expanded space for agitation of rights and freedoms in the wake of the Constitution of Kenya 2010, there are bound to be more cases brought before courts for adjudication on the question of individual rights and freedoms. While many of them will be genuine attempts and efforts to assert these constitutional guarantees, it cannot be ruled out that the number of litigants that the Lord Scarman described in IRC v. National Federation of Self-Employed and Small Businesses Ltd (supra) as “busybodies, cranks and other mischief makers” will, in all likelihood, also increase exponentially.

146. So, besides other equally important reasons for which leave is required and to which I have adverted in this ruling, the need for leave to sift out cases of this category of persons, if not for anything else, to protect the integrity of court process cannot be over-emphasised; if anything, it is more necessary now than it has ever been before.

147. On the whole, when the question of the requirement for leave is considered from the wider perspective of why leave is necessary in the first place, it is easier to see why it cannot be the intention of the Constitution or the Fair Administrative Action Act to discard this requirement. The reasons for this requirement are as much relevant today as they were before the promulgation of the Constitution of Kenya, 2010 and the enactment of the Fair Administrative Action Act.

148. For the reasons I have given I am not persuaded that the applicants could possibly seek judicial review reliefs without first seeking leave to file the substantive motion for judicial review. To the extent that the applicants’ application was filed without leave, it is misconceived and an abuse of the due process of this Honourable Court.

149. The second aspect of the applicants’ application which calls for this Honourable Court’s attention is whether the applicants were entitled to approach this Honourable Court by way of judicial review in the first place. This is an issue for the court’s consideration because section 64 of the DPA is clear that any person aggrieved by the decision of the DPC may appeal the decision. This section reads as follows:64. Right of appealA person against whom any administrative action is taken by the Data Commissioner, including in enforcement and penalty notices, may appeal to the High Court.

150. There shouldn’t be any doubt that the respondent’s impugned decision is an administrative action within the context of section 68 of the DPA. The applicants have admitted as much in their submissions. In paragraphs 18 and 19 of their written submissions, it has been submitted as follows:“18. The Respondent's functions can be construed as administrative action as provided in Section 2 of the Fair Administrative Actions Act (FAAA) No. 4 of 2015.

19. From the foregoing, the Respondent exercises a function of investigations, and renders a conclusion, which conclusion is enforceable in a court of law. This is an administrative action within the purview of Section 2 of the FAAA.”

151. It follows that the respondent’s decision of 26 September 2023 being of the character described in section 68 was a decision subject to an appeal and not to judicial review proceedings. I say so because where the statute expressly provides for an appeal to this Honourable Court as a means of challenging a decision of a public body authority, person or tribunal, it is not open to an applicant, in those circumstances, to invoke the judicial review jurisdiction of the court.

152. This question has been discussed by David Foulkes in his book Foulkes Administrative Law, 7th Edition. Citing the case of Customs and Excise Commissioners versus J.H. Corbitt (Numismatists) Ltd (1981) AC 22, (1980) 2 2ALL ER 72, the learned author noted as follows:“It is to be noted that an appeal lies from, whether to an appellate tribunal or to a court of law, only when and to the extent that statute so provides, and the powers of the appeal body to review, reconsider etc. the decision of the tribunal likewise depend on the statute.To be contrasted with appeal is judicial review. The decision of tribunals, as bodies exercising judicial functions, have always been subject to review by the courts (that is, to judicial review) by means of the order of certiorari. This enables the court to quash a decision on certain grounds. Whereas appeal lies only when and to the extent that statute provides, the court’s common law power of judicial review exists unless it is take away or limited by statute. Thus where no appeal to the court is provided by statute the only possible challenge in the courts is by way of judicial review…” (at p.150-151). (Emphasis added).

153. And no doubt this was the principle applied by Lord Wright in General Medical Council versus Spackman (1943) AC627, at 640 where he stated as follows:“I have observed that Parliament has not provided for any appeal from the decisions of the council. The only control of the court to which the council is subject (apart from proceedings by way of mandamus) is the power which the court may exercise by way of certiorari. Certiorari is not an appellate power.”

154. Thus, judicial review only sets in if parliament has not, by statute, provided for an appeal. By its very nature, judicial review comes into play where there is no other alternative form of remedy that is as convenient, beneficial and effective. This principle was well articulated by Lord Widgery CJ in R versus Peterkin, ex Soni (1972) Imm AR 253 where the learned judge noted as follows:“The prerogative orders form the general residual jurisdiction of this court whereby the court supervises the work of inferior tribunals and seeks to correct injustice where no other adequate remedy exists, but both authority and common sense seem to me to demand that the court should not allow its jurisdiction under the prerogative orders to be used merely as an alternative form of appeal when other and adequate jurisdiction exists elsewhere”. (Emphasis added).

155. It has also been held in R versus Entry Clearance Officer, Bombay ex p Amin (1983) 818 at 829 (B-C) per Lord Fraser that judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing an administrative decision without substituting its own decision, and it is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer.

156. The same point was emphasised in Chief Constable of North Wales Police versus Evans (supra) where Lord Brightman said at page 1173F and 1174G that:“Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power…Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”Lord Hailsham stated in the same case that:“The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court.” At page 1161A.

157. These authorities remind us that there is a clear distinction between appeal and judicial review and one cannot be substituted for the other. It follows that to the extent that the applicants purportedly instituted judicial review proceedings instead of an appeal, their application is also misconceived and an abuse of the process of the court.

158. And there is no doubt that the applicants are aware that the appropriate jurisdiction to be invoked against the respondent’s decision is this Honourable Court’s appellate jurisdiction rather than judicial review jurisdiction. This is because when the respondent dismissed their complaint in ODPC Complaint No. 677 of 2022 after it was remitted to the DPC by this Honourable Court (Chigiti, J), they filed an appeal against it in this Honourable Court as Civil Appeal No. E641 of 2023 Allen Waiyaki Gichuhi & 2 Others versus Florence Wamuyu Mathenge & Another.

159. That the applicant filed an application for judicial review instead of an appeal demonstrates, once again, why leave is necessary before an application for the substantive motion for judicial review reliefs is filed. This is because if the court had opportunity to consider the application for leave, it certainly would not have granted it because of the simple reason that under section 64 of the DPA, judicial review is not available to the applicants. And if the applicants had been stopped in their tracks at that early stage, there is no doubt that they would have avoided the attendant consequences that follow a failed suit. Needless to say, this Honourable Court’s valuable resources, including time spent on this suit would have been employed elsewhere. (See paragraph 134 above).

160. Before I conclude, I need to comment on section 8 of the Fair Administrative Action which the applicants invoked in their quest to have their application certified urgent and determined within ninety days of the date of filing of the application. This section reads as follows: 8. Period for determination of applications and appeals.An application for the review of an administrative action or an appeal under this Act shall be determined within ninety days of filing the application.

161. To begin with, when weighed against the provisions of section 64 of the DPA, the applicants’ application is a nullity ab initio, having been filed contrary to this provision of the law. The purported application ought not to have been filed in the first place and, therefore, the question of the limitation period within which it should have been resolved need not arise.

162. But more fundamental is the guarantee, by the Constitution, of the right of equality before the law. Article 27(1) of the Constitution provides, in no uncertain terms, that “every person is equal before the law and has the right to equal protection and equal benefit of the law”. For their role in realization of this right, courts have been implored to be guided by, amongst other things, the principle that “justice shall be done to all, irrespective of status. (See article 159(2) (a) of the Constitution).

163. One aspect, of the many aspects there may be, of the right to equality before the law is that, no particular litigant should be discriminated against merely because his case is of a particular character rather than the other. To be precise, there is no viable reason why an applicant or parties in a judicial review application should be preferred and given priority in determination of their cases over litigants in the rest of cases. Save for exceptional circumstances, such as electoral disputes whose speedy disposal is a matter of public interest, every other litigant must have an equal footing in appropriation of the right to access justice.

164. I should not be mistaken to be saying that no particular category of cases can be resolved within a specific timeline. Indeed they can and, as matter of fact, some have been resolved within a shorter period than that prescribed by statute. All I am saying is that, it would be an act of discrimination against a section of litigants to delay the hearing and determination of their cases merely because judicial review applications have to be prioritised. And to the extent that section 8 of the Fair Administrative Action Act purports to promote this sort discrimination, it is inconsistent with and contrary to the provisions of the Constitution to which reference has been made.

165. In the final analysis, and for reasons I have given, I hold the applicants’ application to be misconceived and an abuse of the due process of this Honourable Court. It is hereby struck out with costs. Orders accordingly.

SIGNED, DATED AND POSTED ON THE CTS ON 2 DECEMBER 2024NGAAH JAIRUSJUDGE17|NO. E202 OF 2023: JUDGMENT