[2023] KEHC 26613 (KLR)

Republic v Cabinet Secretary, Ministry of Agriculture & Livestock Development; Ndungu (Exparte Applicant) (Judicial Review 111 of 2023) [2023] KEHC 26613 (KLR) (Judicial Review) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26613 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review 111 of 2023

JM Chigiti, J

December 8, 2023

Between

Republic

Applicant

and

The Cabinet Secretary, Ministry of Agriculture & Livestock Development

Respondent

and

Joseph Ndungu

Exparte Applicant

Ruling

1. What is before this court for determination is the Respondents Notice of Preliminary Objection dated 7th November, 2023 on the on grounds: -1. Thatthe application Notice of Motion dated 23rd August 2023 herein is Fatally defective, frivolous and vexatious as it offends the provisions of Section 9 (2) of the Fair Administrative Actions Act.2. Thatapplication as presented offends the provisions of Section 25(1) & (2) of the Crops Act as read together with Rule 18(2) of the Crops (Nut & Oil Crops) Regulations 2020. 3.Thatthe application is overtaken by events thus moot.

2. The decision sought to be quashed is the letter dated 7th July 2023.

3. Its life lapsed on 16th October 2023. Hence by effluxion of time the matter is moot and there is nothing to be litigated on.

The Respondents’ Case 4. Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd [1969] E.A.696 in the celebrated case Law J.A states a preliminary objection to be thus: -“so far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit”

5. Sir Charles Newbold, President stated in the same judgment 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”

6. Section 25(1) & (2) of the Crops Act read together with Rule 18(2) of the Crops (Nuts & Oil Crops) Regulations 202 and 9(2) of the Fair Administrative Actions Act removes jurisdiction of this court to entertain this matter as there is an alternative remedy which is an Appeal to the Cabinet Secretary Ministry of Agriculture. To this reason alone the Court ought to down its tool.

7. The Applicant has not lodged an appeal against the alleged decision with the Minister. In the circumstances, an application for judicial review to this court is barred by Section 9 (2) and (3) of the Fair Administrative Action Act , 2015 which provides :“(2)… 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).

8. Justice Mativo in Republic v Kenyatta University Ex parte Ochieng Orwa Domnick & 7 others [2018] eKLR held as follows:“Section 9 (2) of the Fair Administrative Action Act provides that 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. Also relevant is sub-section (3) which provides that "the High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in sub-section (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1). The use of the word shall in the above provisions is worth noting. The classification of statutes as mandatory and directory is useful in analyzing and solving the problem of what effect should be given to their directions. There is a well-known distinction between a case where the directions of the legislature are imperative and a case where they are directory. The real question in all such cases is whether a thing has been ordered by the legislature to be done and what is the consequence if it is not done. The general rule is that an absolute enactment must be obeyed or fulfilled substantially. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance.”

9. It is the duty of Courts of justice to try to get at the real intention of the Constitution or legislation by carefully attending to the whole scope of the Constitution or a statute to be considered. The Supreme Court of India has pointed out on many occasions that the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other.

10. The word "shall" when used in a statutory provision imports a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation. The Longman Dictionary of the English Language states that "shall" is used to express a command or exhortation or what is legally mandatory. Ordinarily the words ‘shall’ and ‘must’ are mandatory and the word ‘may’ is directory. A proper construction of section 9 (2) & (3) above leads to the conclusion that they are couched in mandatory terms. The only way out is the exception provided by 9 (4) which provides that: -"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.”

11. Two requirements flow from the above sub-section. First, the applicant must demonstrate exceptional circumstances. Second, on application by the applicant, the Court may exempt the person from the obligation. The ex parte applicants counsel made a statement that there are exceptional circumstances in this case after the Court drew his attention to the above sections. He however did not provide specific cases that bring this case under the exceptions, except stating that the applicants are young which to me does not fit into the definition of "exceptional circumstances" discussed below.

12. It is settled that the impugned decision constitutes administrative action as defined in section 2 of the Fair Administrative Action Act.

13. Therefore, an internal remedy must be exhausted prior to Judicial Review, unless the appellant can show exceptional circumstances to exempt him from this requirement.

14. What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action in issue.

15. Factors taken into account in deciding whether exceptional circumstances exist are whether the internal remedy is effective, available and adequate. An internal remedy is effective if it offers a prospect of success, and can be objectively implemented, taking into account relevant principles and values of administrative justice present in the Constitution and our law, and available if it can be pursued, without any obstruction, whether systemic or arising from unwarranted administrative conduct. An internal remedy is adequate if it is capable of redressing the complaint.

16. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional Interpretation especially in virgin areas or where an important constitutional value is at stake. Indeed, in this case, no such argument was advanced before me nor can I discern any virgin argument touching on Constitutional interpretation.

17. 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, and that in determining whether an exception should be made and Judicial Review granted, it is necessary for the Court to look carefully at the suitability of the appeal mechanism in the context of the particular case and ask itself what, in the context of the internal appeal mechanism is the real issue to be determined and whether the appeal mechanism is suitable to determine it.”

18. The decision sought to quashed is the letter dated 7th July 2023 whose life lapsed on 16th October 2023. Hence by effluxion of time the matter is moot and there is nothing to be litigated on.

6thInterested Party 19. The Interested Party places reliance on the case of Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd[1969]E.A.696.

20. They argue that the case is premature, defective, frivolous as it offends the doctrine of exhaustion. Section 25(1) & (2) of the Crops Act read together with Rule 18(2) of the Crops (Nuts & Oil Crops) Regulations 202 and 9(2) of the Fair Administrative Actions Act.

21. There is an alternative remedy which is an Appeal to the Cabinet Secretary Ministry of Agriculture and The Applicant has not lodged an appeal against the alleged decision with the Minister.

22. According to them this court is barred by Section 9 (2) and (3) of the Fair Administrative Action Act, 2015.

23. Reliance is placed in the case of Republic v Commissioner General, Kenya Revenue Authority, Ex-parte Sanofi Aventis Kenya Limited (2019)e KLR the court held that; “The doctrine of exhaustion of administrative remedies

24. Reliance is also placed in the case of Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR,

25. The interested party further invites the court to take note that failure to have appealed the decision of the Cabinet Secretary by the Applicant, then the application has not met the threshold for grant of the stay orders sought which are illegality, irrationality and impropriety as held in the case of Council for Civil Service Unions v Minister for Civil Service (1985) AC374 at 401 and in Pastoli v Kabale District Local Government Council & Others (2008) 2 EA 303 where in the latter case it was held as follows:“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

Ex-Parte Applicant’s Case 26. Section 25 of the Crops Act, provides as follows; -“Appeals1. An applicant for or holder of a licence who is aggrieved by a decision of the licensing authority on or in respect of—(a)​the grant, refusal, renewal, variationor revocation; or(b)​the conditions imposed on the grant, renewal or variation, of a license, may appeal to the Cabinet Secretary.(2)​An appeal under this section shall be lodged within thirty days from the date on which the appellant first received notice of the decision.”

27. 3.0. Regulation 18 (2) of the Crops (Nut & Oils Crops) Regulations 2020 on the other hand provide as hereunder; -“(2)An applicant for a licence who is aggrieved by the decision of the Authority in respect of the grant, refusal renewal, variation or revocation or the conditions imposed on the licence may appeal to the Cabinet Secretary for a review of the decision of the Authority in accordance with section 25 of the Act.”

28. Section 9(4) of The Fair Administrative Actions Act provides that notwithstanding the provisions of section 9(2) and (3) of the Fair Administrative Actions Act on exhaustion of available alternative remedies, the High Court or the Subordinate Court may in exceptional circumstances and on application by the applicant exempt such a person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.

29. A party who invites the court to down its tools on account of non-exhaustion of alternative remedies bears the burden of establishing that indeed there is an alternative remedy and that the said remedy has not been exhausted.

30. Mark Ndumia Ndungu -Versus- Nairobi Bottlers Limited & Another (2018) eKLR.

31. 6.0. My Lord in the instant case, we submit that whilst the Respondent extensively cites and submits on the provisions of Section 25 of the Crops Act as read together with Rule 18(2) of the Crops (Nuts and Oils) Regulations, the Respondent has not provided any nexus between the said provisions and the substance of the dispute before this Honorable court.

32. Section 20 of the Crops Act provides for issuance of licenses by the licensing authority, section 21 provides for application for renewal of licenses under the Act. Section 22thereof provides for conditions that may be imposed on a license granted to an applicant and Section 23 on the other hand provides for revocation and alteration of a license by the licensing authority. Section 24 provides for surrender of a license by an applicant. My Lord a holistic reading of the above provisions will demonstrate that section 25 of the Crops provides mechanism of appeal by any applicant or holder of a license aggrieved by any decision of the licensing authority to the Cabinet Secretary aggrieved by the licensing authority in the exercise of the powers in section 20, 21, 22, 23 and 24 of the same Act.

33. 9.0. Section 2 of the Crops Act defines the licensing authority to mean the Authority or the county government as the case may be. Section 2 of the same Act defines Authority to mean the Agriculture and Food Authority established under the Agriculture and Food Authority Act, 2013. It therefore follows that from the said definition, the decision subject of appeal to the Minister as contemplated under the section 25 of the Crops Acts a decision by the Agriculture & Food Authority or the County Government in respect of an applicant or a holder of a license.

34. 10. 0. In the instant case, as is evident from the pleadings, the applicant herein describes himself as a farmer engaged in farming of macadamia and a stakeholder in the macadamia industry. There is no such decision from the Agriculture & Food Authority or County Government that is subject of the proceedings before this court that is subject of the appeal contemplated under section 25 of the Crops Act.

35. 11. 0. The ex-parte applicant is neither an applicant nor a holder of a license

36. There is nothing pleaded in the pleadings before this court to suggest that the ex-parte applicant is either an applicant or is a holder of a license or that the decision subject of the proceedings is a decision by a licensing authority or County Government in respect of a license, in order for him to invoke the alternative remedy provided for under the said provision.

37. 12. 0. Further, even assuming that the said alternative remedy is one that is available to the ex-parte applicant as submitted by the respondent (which we contend that it is not), whilst the decision subject of the judicial review proceedings is one by the 1stRespondent, the appellate mechanisms under the said provision would require the Applicant to appeal to the same person who made the impugned decision subject of these proceedings, which proposition would be legally absurd as the 1strespondent would then be considered the judge and the prosecutor in his own cause contrary to the sacred principles of natural justice.

38. 13. 0. Since the ex-parte applicant is not one of the persons who could lodge an appeal under section 25 of the Crops Act cited by the respondent, the alternative dispute resolution mechanism contemplated thereunder was therefore not available to the ex-parte applicant.

39. Republic v Joe Mucheru, Cabinet Secretary Ministry of Information Communication and Technology & 2 others Ex Parte Katiba Institute & another; Immaculate Kasait, Data Commissioner (Interested Party) [2021] eKLR

40. 14. 0. In the Mark Ndumia Ndungu -Versus- Nairobi Bottlers Limited & Another (2018) eKLR (supra) the High court cited with approval the case of Dawda K Jawara v Gambia 147/95-149/96 on availability of effective alternative remedies, where it was held that:“A remedy is considered available if the petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success, and it is found sufficient if it is capable of redressing the complaint... The government’s assertion of non-exhaustion of local remedies will therefore be looked at in this light... a remedy is considered available only if the applicant can make use of it in the circumstance of his case.” (emphasis added)

41. 15. 0. We submit that the provisions of the Crops Act as cited by the respondent do not in any way provide the ex-parte applicant with any alternative remedy capable of being pursued in light of the nature of the proceedings before this Court. 42. Reliance is placed in the Court of Appeal decision in Council of County Governors -Versus- Lake Basin Development Authority & 6 Others where the Hon. Justice Mativo (as he then was) held as follows; -“Given the nature of the complaint in this Petition, I am clear in my mind that the mechanism used as a shield to challenge this court's jurisdiction cannot grant an effective remedy if this dispute were to be subjected to the said mechanism. Put bluntly, the constitution is very clear on where the jurisdiction to determine constitutionality of statutes lies, it is vested in the High court. No other body or person in this country has the jurisdiction to determine constitutionality of provisions of a statute.”

Analysis and determination 43. Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd[1969]E.A.696 in the celebrated case Law J.A states a preliminary objection to be thus:-“so far as I am aware, a preliminary objection consist of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit”

44. Sir Charles Newbold, President stated in the same judgment 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”

45. I have familiarized myself with Section 25 of the Crops Act, provides as follows; -“AppealsAn applicant for or holder of a license who is aggrieved by a decision of the licensing authority on or in respect of—(a)​the grant, refusal, renewal, variation or revocation; or(b)​the conditions imposed on the grant, renewal or variation, of a license, may appeal to the Cabinet Secretary.(2)​An appeal under this section shall be lodged within thirty days from the date on which the appellant first received notice of the decision.”

46. Regulation 18 (2) of the Crops (Nut & Oils Crops) Regulations 2020 on the other hand provide as hereunder; -“(2)An applicant for a licence who is aggrieved by the decision of the Authority in respect of the grant, refusal renewal, variation or revocation or the conditions imposed on the licence may appeal to the Cabinet Secretary for a review of the decision of the Authority in accordance with section 25 of the Act.”

47. From The pleadings it can be gleaned that the ex-parte applicant is neither an applicant nor a holder of a license. He describes himself as a farmer engaged in farming of macadamia and a stakeholder in the macadamia industry.

48. I find that the Notice of Preliminary objection is misplaced to the extent of challenging the failure to exhaust Section 25 of the Crops Act and Regulation 18 (2) of the Crops (Nut & Oils Crops) Regulations 2020.

49. The said provisions deal with issues around licencing which is not the cause of action in this suit.

50. having so found, the none exhaustion challenge as mounted in ground 1 of the preliminary objection under Section 9 (2) of the Fair Administrative Actions Act cannot be fronted in limbo.

51. Grounds 1 and 2 of The Notice of preliminary objection are hereby dismissed.

52. The 3rd ground of the Notice of preliminary objection is that the application is overtaken by events thus moot.

53. The Substantive Judicial Review application before this court primarily challenges the decision of the 1st Respondent dated 7th of July 2023 by which the 1st Respondent sought to lift the ban on exportation of raw macadamia nuts whilst at the same time conferring exclusive exportation rights to the 1st to 9th Interested Parties to export such raw macadamia within a period of 90 days from 17th of July to 16th of October 2023 to the exclusion of everyone else.

54. On 18. 8.23 this court issued an order that the leave to institute judicial review proceedings do operate as a stay in terms of prayer 3 of the application dated 10. 8.23 which read THAT the grant of leave in (2) above do operate as stay of the decision or the implementation of the decision of the is respondent vide his letter dated 7th July 2023 lifting the ban of importation of in-shell macadamia for a period of 90 days while contemporaneously granting exclusive exportation rights to the interested parties to the exclusion of other macadamia dealers during the 90 day period pending the hearing and determination of the substantive Judicial Review Application.

55. In Coalition for Reform and Democracy (CORD) & 2 Others -v- Republic of Kenya & Another HCCP 628 of 2014 [2015]eKLR, the court cited the case of Patrick Ouma Onyango & 12 Others –v- AG & 2 Others Misc. Appl No. 677 of 2005 wherein the court had endorsed the doctrine of justiciability as stated by Lawrence H. Tribe in his treatise American Constitutional Law, 2nd Ed. as follows:

56. 'In order for a claim to be justiciable as an article III matter, it must “present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted.” In part, the extent to which there is a 'real and substantial controversy is determined under the doctrine of standing' by an examination of the sufficiency of the stake of the person making the claim, to ensure the litigant has suffered an actual injury which is fairly traceable to challenged action and likely to be redressed by the judicial relief requested. The substantiality of the controversy is also in part a feature of the controversy itself-an aspect of ‘the appropriateness of the issues for judicial decision...and the actual hardship of denying litigants the relief sought. Examination of the contours of the controversy is regarded as necessary to ensure that courts do not overstep their constitutional authority by issuing advisory opinions. The ban on advisory opinion is further articulated and reinforced by judicial consideration of two supplementary doctrines: that of 'ripeness' which requires that the factual claims underlying the litigation be concretely presented and not based on speculative future contingencies and of 'mootness' which reflects the complementary concern of ensuring that the passage of time or succession of events has not destroyed the previously live nature of the controversy. Finally, related to the nature of the controversy is the 'political question' doctrine, barring decision of certain disputes best suited to resolution by other governmental actors'.

57. Congressionally authorized declaratory judgments may be obtained in federal courts, and state judgments reviewed there; if the requirements of the justiciability doctrine are otherwise met where there is a concrete case admitting of one immediate and definite determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised.

58. The cause of action is “present and real and substantial controversy which unequivocally calls for adjudication of the rights.

59. The time for the impugned letter was suspended by the order of this court on 18. 8.23 and it remains as such.

60. The Respondents cannot be heard to say that the ninety days moratorium period as granted on by Respondent through the impugned letter of 17th July 2023 lapsed on 16th of October 2023 and that the suit is moot. This argument is misplaced.

Order:The Notice of Preliminary Objection dated 7th November 2023 lacks merit and the same is dismissed.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER, 2023. J. CHIGITI (SC)JUDGEJR. NO. 111 OF 2023 RULING 6 | Page