[2004] KEHC 62 (KLR)

IN THE MATTER OF: AN APPLICATION FOR AND ON BEHALF OF DR. R. K. SAINI, CHAIRMAN, J.P. GAJREE, SENIOR VICE CHAIRMAN, Y.P. SAGGAR, VICE CHAIRMAN, B.D. SOMAN, TREASURER, AND K. B. VIDYARTHI, PUBLIC RELATIONS OFFICE, S.K. VINAYAK, IMMEDIATE PAST CHAIRMAN, OF ARYA PRATINIDHI SABHA (EAST AFRICA) TO APPLY FOR ORDERS FOR JUDICIAL REVIEW.

IN THE MATTER OF:ORDER LIII CIVIL PROCEDURE RULES,THE LAW REFORM ACT, CHAPTER 26,AND ALL ENABLING PROVISIONS ANDPROCEDURES OF THE LAW.

IN THE MATTER OF:B.S. DHANDA, CHAIRMAND.K. BHALLA THE HON. GENERALSECRETARY AND R. HANDA,

TREASURER, M. LUMBA DEPUTY CHAIRPERSON, R. KAPILA, ASSISTANT SECRETARY FOR AND

ON BEHALF OF ARYA SAMAJ, NAIROBI

R. K. SAINI

J.P. GAJREE,

S.K. VINAYAK,

Y.P. SAGGAR,

B.D. SOMAN,

K.B. VIDYARTHI FOR & ON BEHALF OF

ARYA PRATIINIDHI SABHA (EAST AFRICA) NAIROBI........APPLICANTS

VERSUS

B.S. DHANDA, CHAIRMAN,

D.K. BHALLA GENERAL SECRETARY

R. HANDA TREASURER,

M. LUMBA, DEPUTY CHAIRPERSON,

R. KAPILA, ASSISTANT SECRETARY FOR AND ON BEHALF OF

ARYA SAMAJ, NAIROBI................................................................RESPONDENTS

RULING.

1. This is an Application by the Respondents, all of whom areofficials of a society by the name, Arya Samaj, Nairobi. The ordersought is that of setting aside of leave granted by this court and thesame is brought under Section 3A of the Civil Procedure Act, Order53 of the Civil Procedure Rules, the Inherent Power of court and allother enabling provisions. There are a number of grounds detailedout in support thereof and the end is that the orders issued ex-parte on 14th December 2003 be set aside and the Applicationlodged on 15th December 2003 be struck out.

2. The Supporting Affidavit sworn by Balbir Sagar Dhanda onbehalf of the Respondents sets out the main issues that havenecessitated the Application; -

Firstly, it is deponed that the remedy of judicial review is notavailable to the Applicants. The Arya Samaj, it is said, is a privatebody and therefore cannot be, like a public body the subject oforders of Mandamus, Certiorari or Prohibition.

Secondly, the Constitution of the Arya Samaj, specificallyclause 35 thereof ousts the Jurisdiction of courts in disputesbetween members and creates a Judicial Committee to deal withthose disputes. The Applicants ought therefore, to have initiallyinvoked this clause in seeking an address of their complaints.

Thirdly, the Affidavit of Dr. Rajinder Saini is not an Affidavit asit is claimed that it was sworn before a Commissioner for Oaths inNairobi on 8th December 2003 when it is generally agreed that onthat date, the said Dr. Saini was in the United States of America.To that end, I am asked to find that there is no Affidavit in supportof the Application and the same ought to be struck out.

Fourthly, and this is really a peripheral issue, it is said thatthe Applicants are in fact the officials of Arya Pratinidhi Sabha, atotally different body, in fact a congress of all Arya Samaj Societiesand the Respondents have no locus in bringing any proceedings inthe name of that body.

3. Mr. Mogeni who appeared for the Respondents argued thesepoints at length and said one mere thing, which is important. Heanticipated the argument that once leave is granted in judicialreview matters, the same cannot be set aside as there is no such procedure under Order 53 of the Rules. He therefore, argued thatwhereas there is no specific provision to that end, the court hasinherent jurisdiction to set aside its own orders hence the specificreliance on that jurisdiction in this Application.

4. The response by the Applicants is contained in an affidavitsworn on 8th March 2004 by Dr. Rajinder Saini. He went into greatdetail to justify the proceedings as filed. I find it unnecessary torestate them as the time and place for doing so is in my view not inthis Ruling. Suffice it to say that Dr. Saini repeats the contentionsmade in his earlier Affidavit that, in the meeting that is the subjectof these proceedings, Rules of Natural justice were flouted andhence the need to seek redress through judicial review orders assought herein.

5. Mr. Billing for the Applicants/Respondents took the view that,firstly Dr. Saini swore his initial Affidavit on 2nd December 2003 andthe mistake in dating it the 8th of December 2004 was made by theCommissioner for Oaths, Victor Githinji, who has sworn an Affidavitto that effect.

6. Secondly, even if the Affidavit was defective the defect iscurable and does not lend the whole Application to the draconianpower of court to strike out.

7. Thirdly, the Arya Samaj is referred to in the minutes of itsmeeting of 8. 9.2002 as "a religious society".This does not meanthat it is a private religious society and therefore outside thesupervision of courts by way of judicial review. In any event, oncethere is breach of the rules of Natural Justice, as is claimed here,the Jurisdiction of court cannot be ousted.

8. Fourthly, if the Applicants are dissatisfied with the leavegranted to institute judicial review orders, the correct procedure isnot an Application to set aside that leave, but an appeal against thegrant of leave.

9. Counsel appearing for parties relied on a number ofauthorities for which I am grateful and I shall content myself withreferences where necessary as I address the issues raised.

10. I should start by disposing of the issue whether once leave hasbeen granted under Order 53 of the Rules; a party so dissatisfiedcannot seek that the same be set aside. I am aware of the ratherunclear position taken by our courts in the matter. I have forexample seen the Ruling of Rimita, J. in Adams Brown & Co. Ltd.vs. Commissioner of Lands, HCCC No. 92 of 2002where indiscussing this question the Learned Judge had this to say;

"the court has jurisdiction underOrder LIII R. 1(2) of the Civil ProcedureRules to give leave ex-parte to a subject toapply for judicial review.

My understanding of the jurisdictionconferred is that once exercised in favourof the Applicant/Subject, the Respondentwho had no audience at the ex-parte stagecannot have the orders set aside. TheRespondent and any Interested Party canonly be heard in the second Application i.e.the Notice of Motion.

It is at this stage that the Respondentand any Interesting (sic) Party canchallenge the Notice of Motion or evengrant of leave."

11. I am also alive to a subsequent Ruling by Rimita, J. inNakumatt Holdings Ltd. vs. Commissioner of VAT, H.C. Misc.508/2003where the judge emphatically stated that once leave isgranted in Judicial Review matters, the only mechanism available tothe Respondent or the Interested Party is an appeal against grant ofleave. This is in consonance with Mr. Billing's argument in theinstant Application.

12. Nyamu, J. in Republic vs. Commissioner of Customs and Excise ex-parte Swiran Carriers Ltd. HCC Misc. 832 of 2003did refer to a contrary decision in Mike Mills& Another vs. The Posts and Telecommunications Corporation HCC Misc. 1013 of 1996wherein Ole Keiwua, J. (as he then was) had this to say: -

"The appropriate procedure forchallenging leave granted ex-parte underRSC Order S3 Rule 3 to apply for JudicialReview was either by an Application underthe inherent jurisdiction of the court to thejudge who granted the leave or by way ofan appeal under the general appellatejurisdiction conferred by section 6(1) of theSupreme Court 1981. .."Nyamu, J. rejected this position and said,

"The only relief is given by way ofappeal to the court of Appeal. Proceduresin Appeal are always created by statuteand section 8(5) cannot have any otherinterpretation because it is notambiguous".

13. The Court of Appeal on the other hand has this to say inNjuguna vs. Minister for Agriculture (2000) 1 E.A. 185 at 186when discussing the point: -

"It cannot be denied that leave shouldbe granted, if, on the material available,the court considers, without going into thematter in depth, that there is an arguablecase for granting leave. The appropriateprocedure for challenging such leavesubsequently is by an application by theRespondent under the inherent jurisdictionof the court to the judge who grantedleave, to set aside such leave. SeeHalsbury's Laws of England (4th edition)Volume 1(1) paragraph 167 at page 1276. "

This is in tandem with Ole Keiwua's Ruling above-quoted.

14. Against this unhelpful background, what with the conflicting decisions, I must start by addressing my mind to Section 9 of the Law Reform Act and Order 53 of the Rules Section 9(1) of the Act provides as follows: -

"Any power to make rules of court toprovide for any matters relating to theprocedure of Civil Courts shall includepower to make rules of court -

a) prescribing the procedure and the feespayable on documents filed or issued incases where an order of mandamus,prohibition or certiorari is sought.

b) ....

c)

15. The rules referred to are in Order 53 of the Civil ProcedureRules, which provides as follows: -

"1. (1) No application for an order ofmandamus, prohibition or certiorari shallbe made unless leave therefore has beengranted in accordance with this rule.

2. An Application for such leave asaforesaid shall be made ex-parte to a judgein chambers, and shall be accompanied by a statements setting out the name and description of the Applicant, the reliefsought, and the grounds on which it issought, and by affidavits verifying thefacts relied on. The judge may in grantingleave, impose such terms as to costs andas to giving security as he thinks fit."

16. To my mind the Parent Act with regard to Order 53 istherefore the Law Reform Act, and it is to it that we must look forany guidance in this matter and Section 8 is clear in that regard. Itprovides as follows: -

"8(1) The High Court shall not,whether in the exercise of its civil orcriminal jurisdiction, issue any of theprerogative writs of mandamus, prohibition or certiorari.

2) In any case in which the High Courtin England, is by virtue of the provisions ofSection 7 of the Administration of Justice(Miscellaneous Provisions) Act, 1938 of theUnited Kingdom empowered to make anorder of mandamus, prohibition orcertiorari; the High Court shall have powerto make a like order."

17. The effect of these two provisions is to substitute the power toissue writs with that to make orders in judicial review and the HighCourt has that extra or special jurisdiction over and above that incivil and criminal proceedings generally. Before granting anysubstantive order however, leave must be procured first.

18. The question that would follow is this; if one is dissatisfiedwith such an order, (to grant leave) is setting aside, the correctprocedure?

19. Section 8(5) of the Law Reform Act provides as follows: -

"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."

The section refers clearly to "order of mandamus, prohibition and certiorari"and necessarily to leave granted to institute proceedings. It follows that an appeal by an aggrieved party is a correct procedure in addressing grievances with regard to alleged improper grant of leave, which necessarily takes me back to order

20. Order 53 Rule 4 provides as follows;

"Copies of the statement accompanying the application for leaveshall be served with the Notice of Motion,and copies of any affidavits accompanyingthe application for leave shall be suppliedon demands and no grounds shall, subjectas hereinafter in this Rule provided, berelied upon or any relief sought at thehearing except the grounds and relief setout in the said statement."

21. The reason for this provision in my view so that theRespondent and Interested Party have all the material placed beforethe Judge who granted leave and so that one of the grounds forargument would be in fact whether leave was properly granted,. Iam therefore, in agreement with Nyamu, J. and Rimita, J. to theextent that an appeal can be allowed to challenge leave granted or aparty, as has been generally the practice in Kenya, and as I haveshown properly so under the Act and the Rules, may choose toargue the point at the hearing of the Application for substantive orders for judicial review. But there is the rather controversialissue of setting aside to contend with.

22. I must state that it is very refreshing to read the clear andunequivocal decision of the Court of Appeal in Aga KhanEducation Service Kenya vs. Republic ex-parte Ali Seif & 3others, C.A. 257 of 2003with regard to setting aside of leavegranted because it put to rest the unclear position in matters of thisnature.

23. In that case, Omolo, Tunoi and O'Kubasu, JJ.A had this to say: -

"We would caution practitioners thateven though leave granted ex-parte can beset aside on an Application, that is a verylimited jurisdiction and will obviously beexercised very sparingly and on very clear-cut cases, unless it be contended thatjudges of the superior court grant leave asa matter of course. We do not think that iscorrect. Unless the case is an obvious one,such as where an order of Certiorari isbeing sought and it is clear that the decision sought to be quashed was mademore than six months prior to theApplicant coming to court, and there istherefore, no prospects at all of success,we would ourselves discourage practitioners from routinely following thegrant of leave with Applications to setleave aside. Fortunately such Applicationsare rare and like the judges in the UnitedKingdom, we would also point out that themere fact that an Applicant may in the endhave great difficulties in proving his caseis no basis for setting aside leave alreadygranted."

24. It follows therefore that setting aside of leave granted in Kenyacan be done but "sparingly"and in "very clear-cut cases".Aparty may also choose to appeal under the Law Reform Act asstated elsewhere in this Ruling (paragraph 16 page 10].

25. Applying this principle to the instant Application, there arevery attractive arguments raised by the Applicant but these areissues for determination at the hearing of the Application forjudicial review. I did not hear Mr. Mogeni to be challenging the fact that the proceedings sought to be quashed were brought outside ofsix (6) months. I did not also hear him to be saying that theApplicant/Respondent herein does not have an arguable case. Atthe leave stage, that is all that an Applicant ought to show. It is noteven enough to say that the Respondent itself has a powerful oroverwhelming case [per law J. in R. vs. Environment Agency ex-parte Learn [1998] Env. L.R.. Dl).I should also refer the partiesto my recent decision in R. vs. Hon. E. K. Maitha ex-parteDorothy Nduku Nzioka, HC.C. Misc. 198/2004where I declinedto set aside leave although I had misgivings as regards theStatement of Facts filed.

26. I respectively therefore, do not see any need to disturb theleave granted in the matter and the issues raised by the partiesherein can be exhaustively debated at a later stage of theproceedings.

27. I must say something, I think about the submission that onlythe judge who granted leave should set it aside, if at all. In the AgaKhan Education Service Kenya Suprathe court of Appeal said this: -

"Again, by their very nature ex-parteorders are provisional and can be set asideby the judge who has granted it, of course,if the judge is still available to do so. Wethink that if the judge who granted leavecannot sit, for one reason or another, thenanother judge would be perfectly entitledto hear the Application to set aside thegrant of leave, for the jurisdiction isavailable to all judges of the Superiorcourt - see for example, SECRETARY OFSTATE FOR THE HOME DEPARTMENT ex-parte BEGUM 11989] 1 Admin. L.R. 110. "

28. I do not think therefore, that it is only and only the judge whogranted leave who should in all instances also hear the Applicationto set aside the leave.

29. Having come to the conclusion as I have, that there is nocompelling reason to set aside the leave granted, I shall not go tothe other limbs of the Applicant's submissions as my doing so mayprejudice its case at the hearing of the substantive motion.

30. In the event then, the said Application dated 17th February2004 is dismissed with costs.Orders accordingly.

Dated and delivered at Nairobi this 23rd day of April 2004.

I. LENAOLA

Ag. JUDGE

23,4. 04 - 10. 35 a.m.

Before Lenaola Ag. J.Amos CC

Mr. Mogeni for Applicant

Mr. Billing for Respondent Ruling read.

LENAOLA

Ag. JUDGE