[2022] KEHC 11412 (KLR)

Republic v Cabinet Secretary, Ministry of Health; Kambona (Exparte); Kenya Nutritionists & Dieticians Institute (Interested Party) (Miscellaneous Application 329 of 2019) [2022] KEHC 11412 (KLR) (Judicial Review) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11412 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Application 329 of 2019

J Ngaah, J

June 10, 2022

Between

Republic

Applicant

and

Cabinet Secretary, Ministry of Health

Respondent

and

Oscar Kambona

Exparte

and

Kenya Nutritionists & Dieticians Institute

Interested Party

Judgment

1The application before court is a motion dated 13 December 2019 brought under order 53 rule 1 (1) (2) and (4) of theCivil Procedure Rules, section 1A and 3A of the Civil Procedure Act, cap 21, sections 8 and 9 of the Law Reform Act, cap 26. It seeks the following orders:1. That this honourable court be pleased to grant judicial review order of certiorari to remove into this court and quash the respondent’s letter dated 18 September 2019 directing the financial audit of the Kenya Nutritionists and Dieticians Institute (KNDI).2. That this honourable court be pleased to grant judicial review order of prohibition prohibiting the respondent from executing the directions contained in the letter dated September 18, 2019 directing the financial audit of the Kenya Nutritionists and Dieticians Institute.”

2. The applicant also seeks for an order that the costs of the application be provided for.

3. According to the statutory statement verified by the applicant’s own affidavit sworn on 12 November 2019, the Cabinet Secretary for health issued a letter dated 18 September 2019 directing a financial audit of the Kenya Nutritionists and Dieticians Institute.

4. Part IV of the Financial Provision of the Kenya Nutritionists and Dietitians Act No (18 of 2007) does not provide for an audit such as directed by the Cabinet Secretary of Health. The Kenya Nutritionists and Dieticians Institute is not a State Corporation as envisaged in the Public Finance Management Act No 12

5. It does not appear that the respondent and the interested party responded to the applicant’s application; at least I have not found any on the court record. The interested party, however, filed written submissions supporting the motion.

6. Even without a response to the applicant’s motion it does not always follow that an application for judicial review would automatically be granted where there is no response at all. The prerogative remedies of mandamus, certiorari and prohibition are discretionary and the court can only exercise its discretion and grant them where there is sufficient material upon which the court can exercise its discretion and grant these orders.

7. One of the vital components of an application for judicial review is the grounds upon which it is made. They are important because order 53 rule 1(2) states in mandatory terms that the statement accompanying the application must contain, among other things, the grounds upon which the application is made. It reads as follows:(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. (Emphasis added).

8. And order 53 rule 4(1) states unambiguously that no grounds should be relied upon except those specified in the statement accompanying the application for leave.

What Are These Grounds? 9. The grounds for judicial review were enunciated in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 in which Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:"My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well established heads that I have mentioned will suffice.By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v Bairstow [1956] AC 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

10. These grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. The court will intervene and grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to say that further development of this area of law may yield further grounds on a case by case basis. I suppose it is in this spirit that the principle of proportionality as a further ground for judicial review has been developed.

11. Turning back to the applicant’s application, it is not apparent from the statement accompanying the application which of the grounds of judicial review the applicant is relying upon. He has not stated in precise, specific and unambiguous terms the ground or grounds for judicial review upon which he seeks this honourable court’s intervention and to grant him the orders of certiorari and prohibition. What has been presented as grounds is more or less what is in the affidavit and has been couched as follows:"The grounds for seeking relief:1. That the Cabinet Secretary for Health issued a letter dated September 18, 2019 directing a financial audit of the Kenya Nutritionists & Dieticians Institute (KNDI)2. That part IV of the Financial Provision of the Kenya Nutritionists and Dietitians Act No (18 of 2007) does not provide for an audit such as directed by the Cabinet Secretary of Health in her letter dated September 18, 2019. 3.That Kenya Nutritionists and Dietitians (KNDI) is not a State Corporation as envisaged in the Public Finance Management Act 2012 in this regard section 91 of the Public Finance Management act 2012 provides for the purposes of sections 80, 87, 88 and 89”.a.“Government linked corporation” means corporation in which the National Government or National Government entity is a shareholder with less than fifty of the share capital of the corporation; andb.“Invent” means any form of funding provided to a state corporation, including providing share capital, loans, guarantees, grants or subsidies.4. That leave to commence judicial review proceedings for a grant of the orders of certiorari to remove into this court to quash the letter dated 18 September, 2019 issued by the respondent.5. That leave to commence judicial review proceedings for a grant of orders of prohibition prohibiting the respondent from whatsoever dealing with the matter in issue pending the hearing and determination of this suit.6. That in the premises, it is in the interest of justice that this application, seeking leave to commence judicial review proceedings for the orders of certiorari and prohibition be allowed.”

12. Reading these passages, it is not clear which of the grounds of judicial review the applicant has anchored his application on. I would be speculating if I was to proceed on the presumption that the applicant’s application is based on any particular ground or grounds.

13But the court cannot, and need not speculate on what is on the mind of any particular applicant because it is the applicant’s obligation, in the first place, to state categorically the ground or grounds upon which he seeks a judicial review court to intervene and impeach the administrative action in issue.

14. While reiterating the importance of stating grounds for judicial review in concise and precise terms Michael Fordham in his book, Judicial Review Handbook, at Paragraph 34. 1 states as follows:"The need to identify and express accurately the possible grounds for judicial review is not simply a matter of analytical nicety. It is one of practical necessity. The provisions of the new order require the accurate identification of (a) potentially applicable grounds and (b) the time at which they arose. Given the frequent presence of multiple targets, the elusive nature of certain grounds, their disarming interrelationship, and the understandable fear of missed opportunity, it is easy to see why public lawyers may feel tempted to ‘throw everything’ including grounds which are dangerously close to the inconceivable. This approach is unlikely to endear them to the court.”

15. The ‘new order’ referred to in this passage is order 53 of the rules of the Supreme Court of England whose provisions are more or less in pari materia with our own order 53 of the Civil Procedure Rules, 2010. The point is, however, clear that courts will not entertain applications where grounds have not been identified and accurately stated. Stating the grounds in precise terms is not, as it were, a matter of analytical nicety but it is a practical necessity.

16. It follows that where the grounds are not stated, the application is fatally defective as, strictly speaking, it has no foundation upon which it is built. The applicants’ application is such an application and for this reason it cannot see the light of day.

17. It is hereby struck out but I make no orders as to costs. Orders accordingly.

SIGNED, DATED AND DELIVERED ON 10 JUNE 2022NGAAH JAIRUSJUDGE