[2022] KEHC 15421 (KLR)

Nyangweso v Senior Resident Magistrate (Busia); Barasa & 2 others (Interested Parties) (Judicial Review 4 of 2021) [2022] KEHC 15421 (KLR) (16 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15421 (KLR)

Republic of Kenya

In the High Court at Busia

Judicial Review 4 of 2021

JR Karanja, J

November 16, 2022

Between

Andrew O Nyangweso

Applicant

and

Senior Resident Magistrate (Busia)

Respondent

and

Alloys Barasa

Interested Party

Oye Ashioya

Interested Party

Emmanuel Otiangala

Interested Party

Ruling

1. The genesis of this matter is to be found in the application dated and filed herein by the ex-parte applicant, Andrew O. Nyangweso, on the 7th June, 2021 seeking leave to apply for judicial review orders of Certiorari and Prohibition against the respondent, Senior Resident Magistrate’s Court (Busia), to move into this Court and quash the orders and ruling made ex-parte without due service in Busia Misc. Application No. 2 of 2013 and for such leave to operate as stay of execution of the ex-parte orders.

2. The grounds on which the application is anchored are set out in the notice of motion dated 3rd June, 2021 and buttressed in the averments of the applicant contained in the supporting affidavit dated 3rd June, 2021 together with the accompanying affidavit in verification of the facts.The annextures to the affidavits do apparently indicate that a similar application was made by the applicant in Judicial Review Case No. 3 of 2013, but was dismissed by the Court on the 23rd July, 2020, for want of prosecution.It was almost one year thereafter, that the present application was filed by the applicant firstly at the High Court in Bungoma being HC JRMisc. 2 of 2021, before being transferred to this Court on 22nd June, 2021 to become the current Judicial Review Case No. 4 of 2021.

3. On the 22nd September, 2021, when the matter was mentioned before this Court for directions, prayer two (2) of the notice of motion dated 3rd June, 2021 was granted but prayer three (3) was to await inter-parties hearing in that regard. This was set for 30th September, 2021. The Court directed that the substantive motion be filed within twenty-one (21) days.Prayer two (2) was for leave to apply for the aforementioned judicial review orders while prayer three (3) was for leave to operate as a stay of execution of the impugned ex-parte orders made in Busia Misc. App. No. 2 of 2013.

4. On 24th November, 2021, the third prayer was granted by this Court after the respondent and the second interested party raised no objection in respect thereto.The first and third interested parties did not attend Court on that day and have since then kept away from these proceedings for reasons unknown. However, the applicant indicated in the course of these proceedings that the third interested party sadly passed away.

5. As at 16th February, 2022, when the matter was mentioned in Court for directions on the substantive motion, the applicant who was not in Court on that date had not filed the necessary substantive motion which was to be filed within a period of twenty-one (21) days from the date of grant of leave on the 22nd September, 2022. The second interested party opined that the notice of motion dated 11th October, 2021 and filed herein on 12th October, 2021 by the applicant was the expected substantive motion.Since the applicant was not in Court to confirm as much the matter was pushed forward to the 5th April, 2022 for directions. This date was later changed by the Court to the 7th June, 2022.

6. On that 7th June, 2022, the applicant indicated that the application dated 15th December, 2021, was his substantive application. Clearly, this was an error on his part as there was no application dated 15th December, 2021 but 11th October, 2021. What was dated 15th December, 2021, was the applicant’s written submissions respecting the application dated 11th October, 2021, which was therefore regarded and treated as the substantive application.Perhaps the oversight on the part of the applicant was occasioned by the confusing and disorganized manner of filing the numerous documents in this record.

7. Be that as it may, the substantive motion was canvassed by way of written submissions and affidavit evidence. In that regard, the applicant filed his submissions dated 15th December, 2021, 15th May, 2022, 20th May, 2022 and 21st September, 2022. The respondent’s submissions dated 28th January, 2022, were filed by the learned litigation counsel in the office of the Hon. Attorney General of Kenya, Mr. Juma Collins, while the submissions by the second interested party, Mr. Oye Ashioya, dated 1st February, 2022, were filed through Messrs Ashioya & Co. Advocates.

8. Having given due consideration to the application on the basis of its supporting grounds and those in opposition thereto together with the rival submissions, it became apparent to this Court that the basic issue arising for determination is whether the application is proper and competent before Court and if so, whether the applicant has established sufficient and credible grounds for orders of certiorari and prohibition to issue mainly against the respondent.

9. In that regard, judicial review was previously a common law prerogative but has since the advent of the Kenya Constitution 2010, become a constitutional principle to safeguard constitutional principles, values and purposes. Thus, the judicial review powers that were regulated by the common law are also now regulated by the Constitution.Article 23 (3) of the Constitution and S.8 of the Law Report Act provide for judicial review as a relief among other statutory provisions including S.7 of the Fair Administrative Action Act 2015.

10. Basically, the purpose of judicial review is to prevent excessive exercise of power by public bodies and officials and to ensure that an individual is given fair treatment. It is the principle mechanism used by the Court to “police” the exercise of public law functions. Being a constitutional important aspect of our law, it seeks to ensure that bodies exercising public law functions act lawfully and fairly and do not abuse their powers.In essence, judicial review is not concerned with the merits of decisions made by public bodies or officials but with the process by which decisions were made and actions taken. It is regarded as a remedy of last resort available where all alternative avenues of challenge have been exhausted.

11. In the case of Republic v Kenya Revenue Authority &other [2021] eKLR, the High Court stated that it is compulsory for an aggrieved party in all cases to exhaust the relevant internal remedies before approaching a Court for review unless exempted from doing so. That, an applicant seeking exception must satisfy the Court firstly, that there are exceptional circumstances and, reward, that it is in the interest of justice that the exemption be given.

12. The same Court went on to state that it is trite law that the principle running through decided cases is that where there is an alternative remedy or where parliament has provided a statutory appeal process, it is only in exceptional circumstances that an order for judicial review would be granted.Traditionally, there have been three major grounds for judicial review i.e. illegality, irrationality and procedural impropriety. However, these categories are not exhaustive.

13. Illegality is usually manifested where a public entity or official acts beyond the powers which are prescribed for it i.e. it acts “ultra-vires”. It may also extend to where the decision maker misdirects itself in law or where the exercise of discretionary power has been influenced by taking into consideration extraneous or irrelevant factors or by disregard of relevant considerations.Irrationality imputes unreasonableness but in most cases it becomes an uphill task for an aggrieved party to bring a successful judicial review on the basis of irrationality or unreasonableness.Procedural impropriety basically involves minimum standards of procedural fairness. The concept is founded on the principle of natural justice whose pillars are the rule against bias and the right to be heard.

14. The notion of legitimate expectation is a factor in vogue in judicial review matters and is mostly allied to the ground of procedural impropriety. However, legitimate expectation will arise where a party has been given an expectation that a public body will act in a certain way because of its express statements or from prior conduct or regular practice.See [Pastoli v Kabale Distinct Local Government Council &others (2008) 2EA300].The remedies available in judicial review are notably mandatory orders requiring a public body to undertake a particular duty or prohibitory orders restraining or preventing the public from acting or doing something or quashing orders setting aside the decision of a public body on the basis that it is invalid. These are the so called remedies of mandamus, prohibition and certiorari and would normally be granted at the discretion of the Court. They are in principle, discretional remedies.

15. The present application is founded on Ss 8 (1) and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules. These are the substantive and procedural law applicable herein to gauge whether the application is proper and competent and whether the applicant is deserving of this Court’s discretion to issue orders of certiorari or prohibition or both against the respondent as the subject public body which made the impugned decision and/or ruling allegedly on the 10th February, 2021.

16. The applicant alleges in his supporting grounds that he went to the Court on 23rd February, 2021 to file a return of service in Civil Appeal No. E009 of 2020 arising from the decision of the respondent in a Miscellaneous civil application dated 25th September, 2020, which arose from Judicial Review Case No. 3 of 2013 and found that a warrant of arrest had been issued against him by the respondent on the 10th February, 2021, in a manner which was arbitrary, capricious and against fixed principles. He implied that the warrant was issued in furtherance of an ulterior purpose after an ex-partehearing and judgment or ruling on a party bill of costs for which no prerequisite notice was issued to him.

17. The applicant also implied that the presiding Senior Resident Magistrate/Deputy Registrar, interfered with Civil Appeal No. E009 of 2020 which was against her earlier decision by capriciously plucking out records of appeal inJRCase No. 3 of 2013 and issuing the warrant of arrest in what was a corrupt and malicious transaction intended to obstruct an application for stay in the saidJR Case No. 3 of 2013.

18. It is contended by the applicant that he was condemned unheard and his request to be heard on merit was abrogated by the respondent bent on subverting justice by going against the rules of natural justice and statutory procedures. That his legitimate expectation and fair administrative action were thereby contravened. The applicant further contended that the impugned decision was plainly oppressive and outrightly illegal thereby calling upon this Court to interfere by way of a quashing order.

19. In a nutshell, the applicant alludes to being denied an opportunity to be heard before the impugned decision or ruling was made and the warrant of arrest issue. Also that, the entire process leading to the decision was skewed against him at the behest of the respondent who was not only malicious but also biased against him.Clearly, the foregoing factors give an explanation as to why the applicant instituted these proceedings for orders of certiorari and prohibition mostly against the respondent and by extension the second interested party.

20. The order of certiorari is sought for purposes of removing into this Court and quashing the impugned decision/ruling allegedly made by the respondent on 10th February, 2021. It is sought herein under Sections 8 and 9 of the Law Reform Act (Cap 26 LOK). And for purposes of preventing the arrest and detention of the applicant, the order for prohibition is sought but was not the most efficacious in the circumstance as the impugned decision had already been made (see Kenya Examination Council Exparte Geoffrey Gathinji Njoroge &others, NBICivil Appeal No. 64 of 2012). The proper remedy would be stay or review of the decision or even appeal against the decision.Clearly, the applicant opted for judicial review under Order 53 of the Civil Procedure Rules rather than Article 23 of the Constitution which provides for an order of judicial review as an appropriate relief that may be granted in the enforcement of the Bill of Rights.

21. Therefore, by specifically moving this Court for orders of judicial review, which would be available to the applicant under Order 53 of theCivil Procedure Rules, the applicant ought not be heard herein to invoke the provisions of the Constitution or any other statute providing for judicial review. It would also not be for the Court to tamper with this application under the guise of enforcing fundamental rights in the Bill of Rights under the Constitution. (See Emfil Ltd v Registrar of Titles Mombasa &others (2014) eKLR and Nation Media Group Ltd v Cradle – The Children’s Foundation suing through Geoffrey MoganyaNBICivil Appeal No. 149 of 2013 (C/A).

22. In that regard, the Court cannot also purport to invoke Article 159 (2) (d) of the Constitution in this matter. The Article provides that:-“In exercising judicial authority, the Courts and Tribunals shall be guided by the following principles –a.………………………………………..b.………………………………………..c.……………………………………….d.justice shall be administered without undue regard to procedural technicalities, ande.………………………………………

23. In the case of Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission (IEBC) &others (2015) eKLR, the Supreme Court stated that Article 159 (2) (d) of the Constitution is not a panacea for all procedural shortfalls and that not all procedural deficiencies can be remedied by Article 159 and such is clearly the case, where the procedural step in question is a jurisdictional pre-requisite.

24. In the Nation Media Case (Supra), the Court of Appeal said that:-“The jurisdiction of the High Court in judicial review and in a petition for enforcement of the Bill of Rights is invoked by the procedure a party pursues.In judicial review the special jurisdiction is invoked under Order 53 of the Civil Procedure Rules while the jurisdiction of the Court to enforce fundamental rights is invoked under Articles 23 and 258 of the Constitution”.

25. As noted herein above, under the Law Reform Act, the procedure prescribed is found in Oder 53 of the Civil Procedure Rules, which essentially provides for the manner of bringing and prosecuting judicial review applications for orders of Mandamus, Prohibition and Certiorari.In that regard, it may safely be stated that Rules 1, 2 and 3 of Order 53 of the Civil Procedure Rules were complied with. However, the mandatory Rule 7 of Order 53 of theCivil Procedure Rules was not complied with. An applicant can question the validity of any order, warrant, commitment, conviction, inquisition or record, only if before the hearing of the application a copy of the impugned decision, ruling or order has been lodged with the Court or provided in any other manner together with the application and the earlier application for leave.

26. In this matter, the impugned decision, ruling, or order was neither lodged with or provided to the Court thereby rendering the present application “dead on arrival” hence null and void “ab initio”.The applicant in his further submissions dated 15th May, 2022, proffered an explanation for the costly omission, but it was most unsatisfactory and unacceptable for want of proof, corroboration and credibility. Other than casting aspersion on the conduct of the respondent’s unnamed or named officers, the explanation fell short on substance and merely amounted to a personalized attack on the respondent’s officers or staff.

27. In any event, if the applicant felt offended, dissatisfied or aggrieved with the conduct of the respondent’s officials he ought to have brought the fact to the attention of the Head of Station for necessary administrative action, if at all. The opportunity to do so was never denied. However, the applicant instead demonstrated his displeasure by bringing this judicial review application, an action which clearly was an abuse of the Court process and a gross contravention of the principle or doctrine of exhaustion which is applicable in judicial review matters.

28. Such doctrine of exhaustion of remedies prevents a party from seeking a remedy in another forum or Court until all claims or remedies have been exhausted in the original forum or Court.In the case of Speaker of the National Assembly v James Njenga Karume &others (1992) eKLR, the Court of Appeal held that:-“…..where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament that procedure should be strictly followed. We observed without expressing a concluded view that Order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions”.

29. The Court of Appeal in Republic vNational Environment Management Authority Ex-parte Sound Equipment Ltd.(2011) eKLR, also stated that:-“Where there was an alternative remedy and especially where parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted”.The applicant herein was required to exhaust all the alternative remedies available to him including the right to appeal the impugned decision, ruling or order of the lower Court before moving to this Court for judicial review remedies.

30. In sum, the present application is improper and incompetent before this Court and even if it was proper and competent, the applicant would not be deserving of this Court’s exercise of discretion in his favour for contravening the doctrine of exhaustion and for lack of credible evidence to establish the alleged illegality and procedural impropriety in the process resulting in the impugned decision, ruling or order.

31. The application must therefore and is hereby dismissed with costs to the respondent and the second interested party.Ordered accordingly.

J.R. KARANJAHJ U D G E[DATED AND DELIVERED THIS 16TH DAY OF NOVEMBER, 2022]