[2022] KEHC 2331 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW DIVISION

JR APPLICATION NO. E136 OF 2021

REPUBLIC...............................................................................................................APPLICANT

-VERSUS-

THE CABINET SECRETARY MINISTRY FOR EDUCATION...........1ST RESPONDENT

KENYA NATIONAL QUALIFICATIONS AUTHORITY.....................2ND RESPONDENT

-AND-

HON. ATTORNEY GENERAL......................................................1ST INTERESTED PARTY

COMMISSION FOR UNIVERSITY EDUCATION...................2ND INTERESTED PARTY

TECHNICAL AND VOCATIONALE EDUCATION AND

TRAINING AUTHORITY.............................................................3RD INTERESTED PARTY

KENYA NATIONAL EXAMINATION COUNCIL.....................4TH INTERESTED PARTY

NATIONAL INDUSTRIAL TRAINING AUTHORITY.............5TH INTERESTED PARTY

-AND-

GEORGE BALA.................................................................................EX PARTE APPLICANT

RULING

1. By a Notice of Motion application dated 29th November, 2021, the 2nd Respondent moved this court seeking for ORDERS:

1)Spent

2)THAT pending the hearing and determination of this Application, the stay orders given on 16/11/2021 be vacated

3)THAT the stay orders given on 16/11/2021 be vacated in their entirety.

4)THAT the ex parte Applicant bears the costs of this application and interests thereon.

5)Any other and further relief that this Honourable Court may deem fit and just to grant in the circumstances.

2. The application is founded on the grounds set out on the face therein the Supporting Affidavit of Dr. Juma Mukhwanasworn on even date. The main grounds for the application is that the net effect of the court order issued on 16th November, 2021 cripples the entire operations of the 2nd Respondent. Secondly, that the 2nd Respondent did not instruct counsel to appear on its behalf or to consent to the grant of the stay orders given by this Honourable Court on 16th November, 2021.

3. In response to the said application, the ex parte Applicant filed and Replying Affidavit sworn by George Bala on 9th December, 2021 and a preliminary objection dated 14th December, 2021. It was contended that this court has no jurisdiction under Order 53 of the Civil Procedure Rules to review its own orders in judicial review proceedings and the application is therefore fatally defective and is liable to be struck off in liminewhich is the subject of this ruling.

4. The ex parte applicant filed written submissions dated 20th December, 2021 in support of the preliminary objection while the 2nd Respondent filed written submissions dated 14th January, 2020 opposing of the same.

Analysis and Determination

5. I have considered the parties submissions herein and the main issue for determination is whether the grounds raised in the ex parte Applicant’s preliminary objection raise pure points of law, and if so, whether the said preliminary objection has merit and should be upheld.

6. The circumstances in which a preliminary objection may be raised was explained by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd(1969) EA 696, as follows:

“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

7. The effect of a preliminary objection if upheld, renders any further proceedings before the court impossible or unnecessary.

8. A preliminary objection cannot therefore be raised if any fact requires to be ascertained. In the case of Oraro v Mbaja, (2005) 1 KLR 141, the court held that any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. The Court of Appeal also stated in Mukisa Biscuit case(supra) that a preliminary objection cannot be raised if what is sought is the exercise of judicial discretion.

9. The ex parte Applicant has stated that this Court has no jurisdiction to entertain the 2nd Respondent’s application dated 29th November, 2021. I am in this respect guided by the case of Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) KLR 1 where Justice Nyarangi JA (as he then was) held:

“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

10. A Court’s jurisdiction flows from either the Constitution or statute or both or and by principles laid out in judicial precedent. It is thus clearly a pure question of law. The 2nd Respondent is seeking to have the orders made on 16th November, 2021 vacated and or set aside in its entirety and the ex parte Applicant’s preliminary objection is grounded on the fact that this court has no jurisdiction to review its own orders.

11. The grant of an order of stay in judicial review proceedings is premised on Order 53 rule 1(4), the provision states;

“Order 53 rule 1(4); The grant of leave under this rule to apply for an order of Prohibition or an order of Certiorari shall, if the Judge so directs, operate as a stay of the proceedings in question until the determination of the application or until the Judge orders otherwise.”

12. A plain reading of Order 53 rule 1(4) clearly shows that the Court has powers to make orders of stay and such orders can subsist until the determination of the application or until when the Judge orders otherwise. To my understanding, circumstances may change or new facts may come to the fore that would necessitate the varying, setting aside or discharge of stay orders earlier granted. The Court of Appeal in Civil Appeal No.77 of 2003, Judicial Commission of Inquiry to the Goldenberg Affair vs. Job Kilach referring to the case of Ex parte Harbage quoted from Page 14 thereof as follows;

“The next point to make is that although appeal does lie to this court against an ex-parte order made by a judge of High Court……………nevertheless in his judgment in that case Sir Donalds on MR [1983] 3 All E.R. 589 at page 593 said:

“I have said ex-parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the Applicant is under duty to make full disclosure of all relevant information in his possession whether or not it assists his application this is no basis for making a definite order and every judge knows this. He expects at a later stage to be given opportunity to review his provisional order in the light of evidence and argument adduced by the other side and in so doing he is not hearing an appeal from himself and in no way feels inhibited from discharging or varying his original order. This being the case it is difficult if not impossible to think of circumstances in which it would be proper to appeal to this court against an ex parte order without just giving the High Court judge an opportunity of reviewing it in light of argument from the defendant and reaching a decision.”

13. I entirely agree with the sentiments of H. Omondi J in Republic v Vice Chancellor Moi University & 3 others Ex-Parte Benjamin J. Gikenyi Magare [2018] eKLRwhere in an application to vacate stay orders in a judicial review application she stated;

“To request the court to re-look at the background leading to the issuance of stay, is in my view not asking the court to sit on appeal on orders of a court of equal status. It is simply telling the court to reconsider the orders issued in light of the fact that the beneficiary of those orders concealed or did not disclose all the material facts prevailing. All the other issues raised will be better addressed at the hearing of the main motion.”

14. Judicial precedent in our jurisdiction has crystallized grounds for varying and/or setting aside leave to apply for judicial review or other orders to include material non-disclosure, concealment of material facts or documents, misrepresentation and where the application is an abuse of Court process. The Court in In the matter of an Application by Justus Nyangaya & Others, Nairobi Misc. Civil Case No.1133 of 2002 observed;

“However the courts have set aside ex parte orders obtained in judicial review proceedings following non-disclosure of material facts, concealment of material documents and on misrepresentation.”

15. In the case of Consumer Federation of Kenya (COFEK) and Others v Attorney General and OthersNairobi JR Misc. Appl. 185 of 2011 (Unreported), Warsame J (as he then was) stated;

“It is also important to restate that, in judicial review matter, court must resist being rigidly chained to the past situation and strict compliance with the procedure. A court of justice must intervene to stop acts in contravention of good governance and accountability in the field of administrative action.”

16. Finally, on the issue of jurisdiction to review its own orders in judicial review, it is trite Law that the Court’s role is to do justice to the parties before it. The Court has inherent powers to meet the ends of justice and in my view such powers are available for deployment in judicial review proceedings. The Court should in exercising such inherent powers be in a position to remedy any injustice that may be occasioned by the Court’s orders at the ex parte stage in judicial review proceedings.

17. To buttress this argument, I refer to the decision of the Court of Appeal in M. Mwenesi v Shirley Luchhurst & Another Civil Application No.170 of 2000where the court held;

“A court of justice has no jurisdiction to do injustice and where injustice on a party to a judicial proceeding is apparent a court of law is under a duty to exercise its inherent power to prevent injustice.”

18. The decision in the M. Mwenesi case above echoes the sentiments of Lord Diplock In Bremier Schiff bar and Maschinen Fabrick vs. South Indian Shipping Corporation Ltd [1981] where the Judge stated;

“It would dampen the constitutional role of a court if as a court of Justice it were not armed with power to prevent its process being misused, in such a way as to diminish its capacity to arrive at a just decision of a dispute.”

19. In view of the above, I find and hold that this court has powers to vary, set aside or discharge orders issued in judicial review proceedings. The upshot is that the Preliminary Objection dated 14th December, 2021 is not merited and is hereby dismissed with no orders as to costs.

Dated, signedand deliveredat Nairobithis11thday ofFebruary, 2022.

............................

A. K. NDUNG'U

JUDGE