[2023] KEHC 23437 (KLR)

Republic v Chief Magistrate, Busia; Haroon Yuasa Limited (Exparte); Amukoya (Interested Party) (Miscellaneous Civil Application E035 of 2021) [2023] KEHC 23437 (KLR) (13 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23437 (KLR)

Republic of Kenya

In the High Court at Busia

Miscellaneous Civil Application E035 of 2021

WM Musyoka, J

October 13, 2023

Between

Republic

Applicant

and

The Chief Magistrate, Busia

Respondent

and

Haroon Yuasa Limited

Exparte

and

Anjeline Moraa Amukoya

Interested Party

Judgment

1. These Judicial Review proceedings were initiated on 20th May 2021, by way of an ex parte chamber summons, dated 24th May 2021, for leave to institute judicial review proceedings for an order of certiorari, to remove into the High Court, and quash a decision of the Chief Magistrate, in Busia CMCCC No. E1 of 2021, and all the consequential orders made and actions taken thereafter. The ex parte application was placed before the Judge, on 27th May 2021, and was allowed, with the resultant effect of leave being granted, and the stay prayer being subjected to inter partes hearing. It was directed that the substantive Motion be filed and served within 21 days. The stay order was made on 9th June 2021, on the basis that the prayer for it was not contested. The substantive Motion was filed on 25th June 2021, dated 16th June 2022.

2. The ex parte applicant did not file the statutory statement, which is the principal pleading in Judicial Review proceedings. There is a verifying affidavit, by Syed Sohail Farrukh, sworn on 24th May 2021. I am not too sure what it verifies, for such an affidavit is meant to verify the averments made in the principal pleading, the statutory statement, yet no such pleading has been filed in this matter. I suppose it is more of a supporting affidavit, to the ex parte chamber summons, dated 24th May 2021.

3. Anyhow, the ex parte applicant is unhappy about how the respondent, in Busia CMCCC No. E001 of 2021, handled the matter, specifically regarding orders that it made in a ruling that was delivered on 4th February 2021. He accuses the respondent of either having a personal interest in the matter, or being totally biased, or incapable of being impartial. It is argued that the ex parte applicant was being denied access to justice, not being given a fair hearing, and miscarriage of justice was likely to occur. The impugned order granted injunctive relief, which the ex parte applicant felt ought not have been the case. These proceedings were initiated for the purpose of quashing those restraining orders. A variety of pleadings, applications, orders and proceedings, in Busia CMCCC No. E1 of 2021, are attached.

4. The Motion, dated 16th June 2021, seeks 2 principal prayers: the certiorari order, the subject of the ex parte chamber summons, dated 24th May 2021, and the leave order of 27th May 2021; and a prohibitory order, to stop the court in Busia CMCCC No. E001 of 2021 from conducting further proceedings in the matter.

5. The respondent did not file a response to the Motion, was not represented in the matter, and did not participate in the proceedings. The interested party filed grounds of opposition, dated 15th May 2023. It is argued that leave was not obtained to initiate the proceedings, the Motion takes issue with the competence of the respondent and was a pseudo-appeal, the application did not reach the threshold for a Judicial Review, and it was incompetent ab initio.

6. Directions were given, on 8th June 2022, for canvassing of the Motion, by way of written submissions. The only submissions I see on record were filed by the interested party, on 14th October 2022, dated 13th October 2022, which are supported by ample caselaw. I have perused the written submissions, and the supporting authorities, and I have noted the arguments made.

7. Let me deal with the issue of jurisdiction first, for, going by The Owners of Motor Vessel “Lillian S” vs. Caltex Oil Kenya Limited (1989) KLR 1 (Nyarangi, Masime & Kwach, JJA), jurisdiction is everything, and determination of the question of jurisdiction may finally dispose of the Motion, without having to advert to its merits. The jurisdiction to grant Judicial Review orders is very limited. It can only be invoked where public bodies are exercising a jurisdiction that they do not have, or are acting in excess of their jurisdiction, or have arrived at decisions in a manner that does not respect set procedural requirements, or have acted unfairly or in a manner prejudicial to either party to the impugned proceedings. Judicial review does not target the merits of the decision, but rather the process that gets the tribunal to the decision. Challenges founded on merits ought to be by way of appeal or ordinary review, not Judicial Review.

8. These Judicial Review proceedings do not raise the question of lack of jurisdiction, on the part of the respondent, to make the orders that it made, in Busia CMCCC No. E1 of 2021, on 4th February 2021. Neither do they raise the question of the respondent acting in excess of its powers, or authority, or jurisdiction, in making the said orders.

9. In the instant case, the ex parte applicant has a grouse with the injunctive orders that the court made. He feels that they ought not to have been made. He does not challenge the process through which the respondent arrived at those orders, but questions the merits of the orders. That was stuff that could not be challenged by Judicial Review. The ex parte applicant, upon being aggrieved by those orders, ought to have challenged them on appeal. He made submissions about lack of impartiality and bias, but the gist of his complaint, as emerges from his verifying affidavit, is that the injunctive orders ought not have been made. He raised some procedural issues, relating to not being given adequate time to file papers or responses. Again, that would not justify grant of Judicial Review reliefs, for such challenges can be sorted out within the processes set out in the Civil Procedure Rules, by way of setting aside, striking out and ordinary review. There should be no occasion to get out of the Civil Procedure Act, Cap 21, Laws of Kenya, and the Civil Procedure Rules, to invoke the reliefs provided for under the Law Reform Act, Cap 26, Laws of Kenya, as the Civil Procedure Act and the Civil Procedure Rules have made provision for recourse to other processes, within the suit, without having to file separate proceedings.

10. Grant of injunctive relief is discretionary, guided by principles developed by the courts. Grant of extension of time to parties to file papers or process, or to get compliances, is also a matter of discretion, exercisable by the court, based on the circumstances of each case, within the parameters set out in the Civil Procedure Rules, and, again, as guided by caselaw. Exercise of discretion goes into substance or merit, and a party, aggrieved by it, ought to move to the appellate court, not the Judicial Review bench. Crucially, where the impugned decision is that of a court of law, the prudent way to address it would be by way of appeal to a higher court, rather than Judicial Review, except in egregious cases of lack of jurisdiction or abuse of it, which can still be subjected to appeal.

11. The application has other serious deficiencies. The first relates to something that I have alluded to, in paragraph 2, hereabove, the omission to file the statutory statement, envisaged in Order 53 rule 1(2) of the Civil Procedure Rules. The said statement is the principal pleading in Judicial Review proceedings. It is akin to a plaint or a petition in an ordinary suit. It originates the Judicial Review cause. It is filed simultaneously with the ex parte chamber summons, at the leave stage, according to Order 53 rule 1(2), and it provides the backbone to the substantive Motion, according to Order 53 rule 4(1). The ex parte chamber summons and the Motion are interlocutory applications or filings that ride on the back of the said statement. One may say that they are mere appendages to that statement. There can be no valid ex parte chamber summons or substantive Motion without the statement. Under Order 53 rule 1(2), the statement must be verified by an affidavit, and that statement and that affidavit must be served together with the substantive Motion, according to Order 53 rule 4(1). Indeed, under Order 53 rule 3(1), no other documents ought to be filed with the Motion, for the same is meant to ride on the statement and the verifying affidavit, filed under Order 53 rule 1(2). The proceedings herein lack that backbone, which provides the basis or foundation for the filing of the verifying affidavit and the Motion. Without the statement, the 2 filings or processes hang in the air. They have no base. These proceedings are, accordingly, half-baked. I agree with the interested party; the proceedings are incompetent.

12. The statement is the pleading, which initiates the Judicial Review proceedings, not the ex parte chamber summons nor the Motion. The ex parte chamber summons and the Motion are interlocutory processes within the Judicial Review proceedings initiated by the statement. The ex parte chamber summons is filed simultaneously with the statement, while the Motion is filed later, but served together with the statement. The ex parte chamber summons and the Motion are facilitative of the statement. They pave way for the hearing of the main suit, set out in the statement. The ex parte chamber summons facilitates the placing of the suit, as set out in the statement, before the Judge, for clearance. Clearance in terms of getting the go ahead or greenlight or leave or permission to prosecute the suit. What the Judge does at the leave stage, once the suit is placed before him, on the strength of the ex parte chamber summons, is to evaluate the suit as set out in the statement and verified in the supporting affidavit, to assess whether or not it makes out a prima facie case, for him to grant permission or leave for its prosecution. If he is satisfied that there is a prima facie case, he would then grant leave or permission or greenlight for the matter to go ahead to hearing. If he is not persuaded, he would deny leave or the permission to proceed with the suit, and the nascent Judicial Review proceedings would die a natural death. After leave or permission to go ahead is given, the ex parte applicant then moves the Judge, by the Motion, filed under Order 53 rule 4, to hear the suit set out in the statement. The Motion does not originate the suit, for the cause is commenced when the statement is filed at the leave stage, simultaneously with the ex parte chamber summons. Neither does the ex parte chamber summons initiate or originate the Judicial Review proceedings, for the ex parte chamber summons is spent once leave is granted. The constant, in Judicial Review proceedings, is the statement, which is the basis for the ex parte chamber summons and the Motion, which is filed together with the ex parte chamber summons, and served together with the Motion. The statement, although filed earlier, is served only after the Judge has cleared the main suit for hearing, vide grant of leave under Order 53 rule 1, hence it is served together with the Motion, which is filed after the grant of leave.

13. The language in Judicial Review proceedings can be deceiving to the undiscerning. Order 53, on the face of it, appears to imply that the ex parte chamber summons originates the proceedings. Suits are initiated or originated by way of pleadings. The ex parte chamber summons is not a pleading. The pleading, for the purposes of Order 53, is the statement, as it sets out the factual background of the case, and the prayers being sought. Order 53 also suggests that Judicial Review proceedings are commenced after leave is obtained, on the strength of the ex parte chamber summons. The Motion, that is filed after leave is obtained, does not originate the Judicial Review proceedings. Firstly, it is not a pleading, it cannot originate proceedings. Secondly, the Judicial Review proceedings would have commenced, or would be in existence, by the time the Motion is filed, for they get initiated or originated when the statement is filed, together with the ex parte chamber summons, and the Motion merely rides on that statement. The Motion does not bring anything new onto the table. The prayers, carried in the Motion, are a replica of those set out in the statement filed earlier.

14. The misconception, that Judicial Review proceedings are initiated by way of the ex parte chamber summons or the Motion, often leads to the current situation, where the ex parte applicant files the ex parte chamber summons without filing the statement, or, as obtains in some High Court stations, such as Kakamega, where I had the privilege of serving, where leave is sought by the ex parte chamber summons in a miscellaneous civil cause, and, once leave is granted, a Motion is then filed in a separate Judicial Review cause. Order 53 of the Civil Procedure Rules does not envisage 2 separate causes, one for leave to bring Judicial Review proceedings, and another of the Judicial Review proceedings themselves after leave is obtained. The leave envisaged in Order 53 is not equivalent to leave to sue or appeal out of time, which is usually sought in separate miscellaneous proceedings, and, upon being granted, the substantive suit or appeal is filed in separate proceedings. Under Order 53 there is envisaged only one cause, initiated by the statement, the subject of Order 53 rules 1(2) and 4. The ex parte chamber summons and the Motion, envisaged in Order 53 rules 1 and 4, are interlocutory, filed within the same cause, to facilitate the hearing and disposal of that cause, which is initiated by way of the statement.

15. It may, perhaps, be argued that the court, on 27th May 2021, granted leave, despite the shortcomings stated above, and thereby legitimized the otherwise incompetent proceedings, and that the same court should and cannot later on, while considering the matter on the merits, revisit the issue of the competence or legitimacy of the suit, for that would amount to questioning the leave granted earlier. That may very well be so. However, at the leave stage, the court decides on whether to grant leave without hearing the parties, and, very often, on a cursory look at the file of papers before it. In the current constitutional dispensation, there is a tendency, driven by Article 159 of the Constitution of Kenya, of the courts avoiding making determinations on matters at the preliminary stage, in ways that are considered drastic, in the sense of driving the parties away from the seat of justice before affording them an opportunity to be heard. This liberal approach has facilitated the clearance of suits, for hearing, that are incompetent or weak. I do not see anything wrong with a court, while considering the matter on its merits, at the hearing stage, to determine that the suit ought not to have been cleared for hearing in the first place, for lacking merit or competence. The same does not amount to undoing what the court, perhaps constituted differently, had done earlier, at the leave or preliminary stage. The mantra appears to be that, at the preliminary stage, clear everything for hearing, and sort out the merits of the matter later at the final determination.

16. My point is that leave herein would not have been granted if the competence of the suit were to be considered at the preliminary stage, for the suit had no foundation, to the extent that it lacked an originating pleading. The ex parte chamber summons could not originate the suit, and leave, under Order 53 rule 1, was not available in the circumstances. The ex parte chamber summons is transient. It is ex parte. It is not available for inter partes canvassing. Its sole purpose is grant of leave, and once leave is granted, the ex parte chamber summons would be spent. It would have no life in it thereafter. The ex parte chamber summons is what the ex parte applicant used to initiate these proceedings. One may even argue that it was meant to be the pleading that the ex parte applicant used to originate the cause. Once leave was granted, the ex parte chamber summons died or was spent, and, naturally, the suit or cause that it originated, if at all, died with it. That took away with it everything that was filed with the ex parte chamber summons. Pleadings are the mainstay of suits. They originate them, and sustain them. The lifeline of a suit is the pleading. Without it, there is no suit. If a pleading is spent, for some reason, before the suit is finally heard and determined, the suit would be unsustainable. The Motion filed herein, after the exhaustion of the ex parte chamber summons, does not help the situation. Motions, by their very nature, are interlocutory. For the instant one, it is not supported by any evidence, for it was not filed simultaneously with a supporting affidavit. Without a statement and a verifying affidavit, deposing to the facts, there would be no basis or foundation for the Motion, if one were to treat it as the pleading in the matter.

17. I note that the Motion introduces a prayer for prohibition, which is not reflected in the ex parte chamber summons. Leave was granted for only one prayer, certiorari. The leave granted was not for agitation for a prohibitory order. The Motion has to be founded on the leave granted and on the prayers pleaded in the statement, and an ex parte applicant is not at liberty to load a prayer into the Motion in respect of which leave was not sought nor obtained. He can only urge such substantive orders as are the subject of the statement and the leave granted.

18. The interested party submits that leave was not obtained. That submission is misguided. If the interested party had perused the court file, she would have noted that the ex parte chamber summons was placed before the Judge, on 27th May 2021, and leave was granted, and it was on the basis of that leave that the substantive Motion herein was filed.

19. I think that I have said enough to demonstrate that the Motion herein, dated 24th May 2021, is without foundation. It is for dismissal, and I do hereby dismiss it, with costs. The stay order, made on 9th June 2021, is hereby discharged. Orders accordingly.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 13TH DAY OF OCTOBER 2023W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Ondego, instructed by Ondego Garo & Company, Advocates for the ex parte applicant.Mr. Ashioya, instructed by Ashioya & Company, Advocates for the interested party