[2017] KEHC 2767 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 176 OF 2016

IN THE MATTER OF UNIVERSITIES ACT NO. 42 OF 2012 AND THE REGULATIONS THERE UNDER

AND

IN THE MATTER OF THE FAIR ADMINISTRATION ACT

AND

IN THE MATTER OF THE RULES OF NATURAL JUSTICE

AND

IN THE MATTER OF TRIBUNAL, ILLEGAL, UNREASONABLE CONDUCT OF COMMISSION OF UNIVERSITY EDUCATION.

AND

IN THE MATTER OF VIOLATION OF THE CONSTITUTION GUARANTEES AND LEGITIMATE EXPECTATION OF GENCO UNIVERSITY.

BETWEEN

REPUBLIC ex-parte GENCO UNIVERSITY …………………….....APPLICANT

VERSUS

COMMISSION FOR UNIVERSITY EDUCATION …….……1ST RESPONDENT

CABINET SECRETARY, MINISTRY OF EDUCATION

SCIENCE AND TECHNOLOGY…………….……………….2ND RESPONDENT

JUDGMENT

1. The applicant in this Judicial Review matter is GENCO University, a private University duly registered and authorized to offer quality degrees in Kenya with the letter of Interim Authority ( LIA) dated 17th June 2011.

2. The 1st respondent Commission for University Education is a duly incorporated body established pursuant to the provisions of Section 4 of the Universities Act, 2012.

3. The 2nd respondent is the Cabinet Secretary Ministry of Education Science and Technology with Authority under the Universities Act, 2012.

4. Vide a notice of motion dated 26th April 2016 and filed in court on 9th May 2016, pursuant to the leave to apply granted on 19th April 2016, the exparte applicant seeks from this court the following orders:

1. This Honourable court be pleased to issue an order of certiorari calling into the High Court and quashing the letter and the decision of the Commission for University Education ( the 1st respondent) contained in the said letter dated 18th March 2016 purporting to revoke and or commencing the process of the revocation of letters of Interim Authority of Genco University dated 17th June 2011 under number ACC/CHE3/000162.

2. An order of certiorari do issue calling into the High Court and quashing the letters, recommendation, decision and the concurrence made to revoke the applicant’s letter of Interim Authority dated 17th June 2011 under number ACC/CHE2/000162, for the alleged lapse of time by the respondents that was contained in the letters dated 23rd October 2015 and 16th February 2016.

3. This Honourable court be pleased to issue an order of prohibition directed at the respondents prohibiting them and/or their servants or agents from revoking the applicants’ letter of Interim Authority;

4. An order of prohibition be issued directed at the respondents prohibiting them, and/or their servants or agents from commencing, continuing, or implementing any of the recommendations, decisions or concurrence of the said letters to revoke the applicant’s letter of Interim Authority.

5. This Honourable Court be pleased to issue an order of prohibition, directed to the respondents, prohibiting them and or their servants or agents from and or in any way publishing, gazetting or in any way circulating any information or notice concerning or purporting to revoke or commence the revocation process of the applicant’s letter of Interim Authority.

6. An order of Mandamus do issue directed at the respondents requiring them, compelling and or directing them to exercise their powers under the Universities Act with impartiality and fairness.

7. This Honourable court be pleased to issue declaration that the respondents acted in breach of natural justice and their duty under the Universities Act in that, in making the recommendations and decision to revoke the applicant’s letter of Interim Integrity they failed and/or neglected to give notice, and to afford a fair hearing, and opportunity to the applicant.

8. The Honorable court be pleased to issue a declaration that the recommendation and decision contained in the letters dated 23rd October 2015 and 16th February 2016 as made are void, illegal, invalid, and devoid of any legal consequences.

9. That this Honourable court be pleased to issue declaration that the acts, recommendation and decision of the respondents were made in bad faith, unjustly and arbitrarily as the prescribed period pertaining to the letter of Interim Authority had not lapsed and the applicant had not violated Section 7(1) of the Act.

10. The costs of this application.

5. The notice of motion was premised on the statutory statement of facts dated 18th April 2016, the verifying affidavit both accompanying Chamber Summons for leave and a supporting affidavit sworn by S.M. Mungai and on other grounds on the face of the notice of motion.

6. The application was vigorously opposed by the respondents who filed replying affidavits sworn by James Kiburi, the Acting Director for University Education on 2nd September 2016 and the 1st respondent’s replying affidavit sworn on 22nd June 2017 by Professor David Some, the Commission’s Secretary/ Chief Executive Officer.

7. On 2nd March 2017 the exparte applicant also filed a further affidavit sworn on 21st December 2016 by Mr S.M. Mungai, its Registrar.

8. All parties advocates filed written submissions which they also orally highlighted on 8th March 2017. They also send soft copies of their said submissions. Relevant authorities were filed and relied on.

9. As I retired to consider the parties’ respective positions as ably argued by their respective counsels, I undertook an exploration of the court file and record of proceedings, this matter having been commenced before Honourable Korir J and having been handled by Odunga J before directing that the file be placed before me for consideration.

10. Of great interest in Judicial Review matters is time stipulated in the Law Reform Act, the Civil Procedure Rules (Order 53) and any other parent Act relevant to the matters under consideration.

11. In this matter, the respondents have raised the issue of the application being statute barred and that it was filed beyond the 6 months period for certiorari, from the time when the letter of Interim Authority [LIA]expired. However, my perusal of the pleadings show that what is being challenged is the letters dated 18th March 2016; 23rd October 2015 and 16th February 2016. As the application for leave was filed on 18th April 2016, it follows that any decision made within 6 months between 18th April 2016 and 18th October 2015 could validly be challenged by way of certiorari.

12. However, any order, or decision made before 18th October 2015 could not be challenged by way of certiorari as stipulated in Order 53 Rule 2 of the Civil Procedure Rules and section 9 of the Law Reform Act.

13. In the instant case, the substantive motion does not challenge the decisions made prior to 18th October 2015 and therefore the argument by the 1st respondent that these proceedings are statute barred does not hold any substance. The same is therefore overruled, as far as the filing of the application for leave to commence these Judicial Review proceedings was concerned.

14. That notwithstanding, the order for leave to institute these Judicial Review proceedings was issued on 19th April 2016 by Honourable Justice Weldon Korir. In the said order, the learned judge at page 4 of the hand written proceedings directed the exparte applicant to also file and serve the substantive notice of motion, skeletal submissions and list of authorities within 15 days from today’s date. That date was 19th April 2016.

15. The learned Judge also listed the matter for mention on 5th May 2016 to confirm compliance and for issuance for further directions.

16. However, the file was recalled on 28th April 2016 and rescheduled for 10th May 2016 as the learned Judge was to be away on 5th May 2016.

17. On 10th May 2016 when the matter came up for mention before the Honourable Korir J, the exparte applicant’s counsel Mr Mwangi informed the court that he had complied with the court’s directions. He then added “We however filed our papers out of time. I apologize to the court and respondents.”

18. The court then proceeded to issue directions regarding the filing of responses by the respondents who were also represented in court and granted leave to the applicant to file further affidavits and supplementary affidavits if need be by either the applicant or the respondents and the matter was rescheduled for highlighting on 9th June 2016.

19. By 9th June 2016 the learned judge Korir J had been transferred to Busia High Court hence, Honourable Odunga J took over the conduct of the matter and directed on 9th June 2016 that the file be placed before me for highlighting of submissions by the parties. The matter was finally heard by way of oral highlights of the filed submissions on 8th March 2017.

20. As I retired to consider the merits of this matter, my attention was drawn to the proceedings and orders of Honorable Korir J made on 19th April 2016 granting leave to the exparte applicant to file the substantive notice of motion within 15 days of the date of leave.

21. Fifteen days elapsed on 4th May, 2016 which was the last day. It was a Wednesday. Examining the notice of motion dated 26th April 2016, it was stamped in court with a received date stamp for 28th April 2016 after court fees assessment was done, requiring payment of shs 36,675.

22. However, the official court filing fees receipt No. 6570248 for kshs 36,675 shows that the fees was paid and receipt issued on 9th May 2016.

23. Court documents which require payment of court fees are deemed filed in court on the day when court fees is paid and acknowledged by way of an official court receipt and not on the date of assessment of court fees.

24. In the instant case, the court received stamp on the substantive notice of motion is for 28th April 2016 whereas court fees was paid on 9th May 2016. The exparte applicant’s counsel Mr Mwangi did acknowledge in court on 10th May 2016 before Honourable Korir J that he had filed his client’s motion out of time. He then proceeded to apologize to the court and to the respondents. He did not seek the court’s leave to enlarge the period within which the substantive notice of motion ought to have been filed.

25. On the other hand, the court proceeded to give directions on the conduct of the matter oblivious of the apology. An apology to court does not invoke an order of the court. No prayer for enlargement of time or validation of the filed motion was made and no order was made regarding the filing of the substantive notice of motion out of time.

26. It is not in doubt that the 15th day lapsed on 4th May 2016 and not 9th May 2016, the latter being the 20th day of the order for leave granted on 19th April 2016.

27. The question for determination is therefore whether this court is seized of any competent application for determination on its merits.

28. From the onset, the motion was filed outside the 15 days granted by Honourable Korir J on 19th April 2016.

29. Order 53 Rules (1) (1) and (3) of the Civil Procedure Rules stipulate that no application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore had been granted in accordance with the rule. Under Rule (2), the leave once granted to apply for the Judicial Review orders of certiorari, prohibition or mandamus, the substantive motion shall be filed within 21 days of the date of leave.

30. Nonetheless, the court ( Korir J) having granted leave and a shorter period than the 21 days for the filing of the substantive notice of motion, it was obligatory for the exparte applicant to file the substantive notice of motion within the time frame stipulated in the court order, and if such time was considered to be insufficient, the applicant was at liberty to seek leave of court for enlargement thereof.

31. The notice of motion having been filed out of time without leave of court it is my humble view that the leave granted on 19th April 2016 elapsed on 4th May 2016 and therefore the motion as filed on 9th May 2016 is incompetent before this court. The Court of Appeal had occasion to consider a similar issue in United Housing Estate Limited v Nyali ( Kenya) Limited CA No. Nairobi 84/1996 and pronounced itself as follows:-

“ A party who obtains an order of the court on certain specified conditions can only continue enjoying the benefits of that order if the condition attaching to it are scrupulously honoured and in the event of a proved failure to comply with the attached condition, the court has inherent power to recall or vacate such an order.”

32. Earlier on in Wilson Osolo vs John Ojiambo Ochola & Another CA of 1995, the same Court of Appeal, while appreciating that Section 9(3) of the Law Reform Act, Cap 26 Laws of Kenya clearly stipulates that an application for leave to apply for an order of certiorari could not be made six months after the date of the order or decision to be quashed and that as there is no provision for extending the time prescribed there under, the court was nevertheless of the view that:

“It is was a mandatory requirement of Order 53 Rule 3(1) of the Civil Procedure Rules then and it is now again so that the notice of motion must be filed within 21 days of grant of such leave. No such notice of motion having apparently been filed within 21 days of 15th February 1982, there was no proper application before the superior court. This period of 21 days could have been extended by a reasonable period had there been an application under Order 49 of the Civil Procedure Rules. There was no such application save the one dated 28th April 1994. That came too late in the day in any event and the learned judge erred in even considering the extension of time some 12 years after the event.”

33. In the recent past, this court has followed the above Court of Appeal decisions in JR 130/2016 Edna Mwende Kavindu v The Kenya Medical Laboratories Technicians and Technologists Board; JR 97/2016 Linda Okello v Inspector General of police of the National Police Service and Other; and JR 437 of 2016 Black Trap Products Ltd vs The Chief Land Registrar and the Chairman National Land Commission.

34. In the above cases, the exparte applicants after obtaining leave to lodge Judicial Review proceedings went to slumber and filed their respective notices of motion out of the stipulated time period given by the court.

35. The court proceeded to strike out the notices of motion for being a nullity ab initio.

36. In other words, this court is of the humble view that a party who obtains an order of the court cannot unilaterally choose not to abide by the conditions attached to the exercise of the court’s discretion on the ground that he or she ought to access justice.

37. The law under Order 50 Rule 6 of the Civil Procedure Rule allows enlargement of the period initially granted by the court. The applicant had the opportunity to seek for such enlargement of time and the court could have considered that plea whether made orally or in writing. No such plea was made. Instead, counsel for the exparte applicant “apologized” to the court and to the respondents for filing his client’s papers out of time.

38. In my humble view, an apology to the court would not be sufficient. It would only suffice if it was accompanying a prayer for enlargement of time and so the court would, in its determination consider whether the delay was justified bearing in mind the apology given.

39. The court’s discretion to enlarge time cannot be exercised suo motu or on the basis of an apology without an application for enlargement of the lapsed period.

40. In John Ongeri Mariaria & 2 Others vs Paul Mutundura Capp. No. Nairobi 301/2003 [2004] 2 EA 163, the Court of Appeal observed quite authoritatively that:

“Legal business can no longer be handled in such sloppy and careless manner. Some clients must learn at their costs that the consequences of careless and leisurely approach to work…..must fall on their shoulders ….whereas it is true that the court has unfettered discretion, like all judicial discretions, must be exercised upon reason not capriciously or sympathy alone……justice must look both ways as the rules of procedure are meant to regulate administration of justice and they are not meant to assist the indolent.”

41. In the instant case, this court finds and holds that failure to comply with the court’s stipulation that the substantive notice of motion be filed within 15 days is not a procedural technicality curable by application of Article 159(2) (c ) of the Constitution especially where there is no application for enlargement of the said stipulated period.

42. And as was aptly pointed out by Odunga J in Republic vs Cabinet Secretary, information, Communication and Technology and Another exparte Celestine Okuta & Others [2016] e KLR:

“ In my view, court orders are serious decisions that can only be exercised based on material placed before the court and cannot be ignored on the ground that they are technicalities. In my view, the law is that technicalities of procedure ought not to automatically lead to termination of proceedings and that the court must have the power to save the same where material exist before the court to justify non-compliance. However, where there is none, and where infact the applicant adopts an incorrect position of the law to justify his inaction, such discretion cannot be exercised.”

43. I reiterate that the exparte applicant did not seek the courts’ indulgence to enlarge time for the filing of the substantive motion despite acknowledging on his first appearance after the filing that he had filed the same out of time. For the foregoing reasons, I find and hold that the notice of motion dated 26th April 2016 and filed in court on 9th May 2016 outside the 15 days granted by Honourable Korir J on 19th April 2016 is fatally incompetent and therefore I shall not waste very precious judicial time and resources to delve into the merits of the substantive motion.

44. I hereby proceed and strike out the said notice of motion. As the respondents proceeded to urge their respective positions in this matter as if the motion was competently filed without raising this important issue which goes to the root of the motion, and as the court was obliged to determine this issue because it is deemed to know the law, I shall not award the respondents any costs of the incompetent motion.

45. The motion is accordingly struck out with each party to bear their own costs of these proceedings.

Dated, signed and delivered at Nairobi this 9th day of October, 2017.

R.E. ABURILI

JUDGE