[2004] KEHC 47 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CIVIL APPLICATION NO. 198 OF 2004

IN THE MATTER OF AN APPLICATION BY DOROTHY NDUKU NZIOKA

FOR JUDICIAL REVIEW FOR ORDERS OF CERTIORARI AND MANDAMUS

IN THE MATTER OF THE CONSTITUTION OF KENYA AND THE

LOCAL GOVERNMENT ACT, CHAPTER 265 OF THE LAWS OF KENYA

AND

IN THE MATTER OF COUNCILLOR DOROTHY NDUKU NZIOKA

BETWEEN

REPUBLIC………………………………………………..….APPLICANT

VERSUS

HON. E.K. MAITHA, MINISTER FOR

LOCAL GOVERNMENT…………………..…….….1STRESPONDENT

ATTORNEY-GENERAL………….…………........…2NDRESPONDENT

ELECTORAL COMMISSION OF KENYA…….INTERESTED PARTY

Ex Parte:

DOROTHY NDUKU NZIOKA

RULING

1. The Respondent herein, the Honourable Emmanuel KarisaMaitha, sued in his capacity as the Minister for Local Governmentand the Honourable The Attorney General are by their Applicationdated 11. 3.2004 seeking an order that the leave granted in thismatter on 24. 2.2004 be set aside.

2. The sole but important ground argued by Mr. Meso was thatthe ex-parte Applicant by her Statement of Facts and VerifyingAffidavit in support of the Application for leave, adduced evidenceby annexing the evidence to the Statement of Facts which iscontrary to the expectations of Order 53 Rule 2.

3. Mr. Musilli for the ex-parte Applicant merely submitted thathis client has complied with all the requirements of Order 53 Rule 1including verification of the Statement of Facts by way of anAffidavit. He raised the issue that the Affidavit by Mr. Meso insupport of the Application herein should not be admitted as counselcannot know the matters he has deponed to.

4. I shall dispose of Mr. Musilli's last point by saying that so faras I know, an advocate can and really should in an Affidavit deponeto matters of law. I am aware that our courts have in certaininstances struck out Affidavits sworn by counsel where the factsdeponed to, really are matters in the special knowledge of theparties. In a case such as this one where all matters are dependenton the interpretation of Order 53 Rule 2, I see no bar to Mr. Mesodeponing to those matters and I decline to strike out his Affidavit.

5. Moving on to the more serious issue, Order 53 Rule 2 providesas follows: -

"An Application for such leave asaforesaid shall be made ex-parte to a judgein chambers, and shall be accompanied bya statement setting out the name,description of the applicant, the reliefsought, and the grounds on which it issought, and by Affidavits verifying thefacts relied on ...."

6. The Statement of Facts in short must have these elements: -

i) Name of Applicant

ii) Description of applicant

iii) Relief sought

iv) Grounds on which it is sought

7. The Affidavit on the other hand verifies the facts as set out inthe Statement. The statement of facts herein reads as follows: -

A. NAME AND DESCRIPTION OF THE APPLICANT

1. The Applicant is Dorothy Nduku Nzioka of PostOffice Box Number 800, Machakos in the Republic ofKenya.

2. The Applicant is a Business Woman operating in theMunicipality of Machakos and has been a nominatedCouncillor in Machakos Municipal Council

B. THE FACTS RELIED UPON AND THE GROUNDS ON WHICHRELIEF IS SOUGHT

3 The Applicant was nominated by the National RainbowCoalition (NARC) as a Councillor in the MachakosMunicipal Council following the Elections held on 27thDecember 2002.

4. NARC forwarded the Applicant's name, amongst othersnames, to the Electoral Commission of Kenya forVerification and Confirmation of qualifications and todetermine that the nominations as a whole compliedwith the Criteria and Principles in the Constitutionand the Local Government Act.

5. The Electoral Commission of Kenya then forwardedthe Applicant to the first Respondent for herappointment as a nominated Councillor and thepublication by way of a Gazette Notice in the KenyaGazette of the nomination and appointment.

6. The first Respondent duly appointed the Applicant asa nominated Councillor and caused the appointmentand nomination to be published in the Kenya Gazette.

7. On the 13th February 2004 the first Respondentrevoked the nomination of the applicant as aCouncillor in Machakos Municipal Council andPublished the revocation of the nomination in theKenya Gazette Notice No. 1094.

8. The first Respondent nominated SERAH NZEMBINZIOKA as a Councillor to take the place of theApplicant and the nomination was published inGazette Notice No. 1093 in the Kenya Gazette of 13thFebruary 2004.

9. The first Respondent has no powers to revoke thenomination of the Applicant as a Councillor in thepurported exercise of section 27(2) of the LocalGovernment Act.

10. The Constitutional arrangement under section 33 ofthe Constitution is intended to check the abuse ofpower and cronism and to ensure that the democraticspace is enlarged.

11. Section 33 of the Constitution supersedes Section27(2) of the Local Authority Act.

12. Section 27(2) is inconsistent with Section 33 of theconstitution and therefore, void to the extent of theinconsistency.

13. The first Respondent has acted in excess of his powersof jurisdiction.

14. The first Respondent has not sought the authority orapproval of the not nominating body which is thePolitical Party NARC.

15. The Gazette Notice No. 1093 and 1094 contained inthe Kenya Gazette of 13th February 2004 is attachedand marked "MMU1".

THE RELIEFS SOUGHT

16. An Order of Certiorari to remove and quash thedecision of the first Respondent contained in theKenya Gazette of 13th February 2004 and appearingtherein a Gazette Notice No. 1094 revoking theNomination of the Applicant as a Councillor in theMachakos Municipal Council.

17. An Order of Mandamus compelling the firstRespondent to reinstate the Applicant to herCouncillorship.

18. An Order of Certiorari to remove and quash thedecision of the first Respondent contained in theKenya Gazette of the 13th February 2004 andappearing therein as Gazette Notice No. 1093nominating Councillors in various Local Authoritiesincluding the Machakos Municipal Council.

19. The leave sought do operate as a stay pending theintended Notice of Motion.

8. The Verifying Affidavit sworn on 23rd February 2004 reads asfollows: -

I, DOROTHY NDUKU NZIOKA of Post Office Box Number 800Machakos in the Republic of Kenya do hereby make oath and stateas follows: -

1. THAT I am a businesswoman living and working inMachakos and I am the Applicant herein.

2. THAT I have been a Councillor in MachakosMunicipal Council.

3. THAT I have read the Statutory Statementaccompanying the Application or leave to apply forthe Orders of Certiorari and Mandamus and statethat all facts set out therein are true and I repeatthe same herein and verify that the same are true tomy knowledge.

4. THAT I swear this Affidavit in support of theApplication.

5. THAT what is deponed hereto is true to the best ofmy knowledge, information and belief.

9 The contention is with regard to paragraph 15 of theStatement of Facts wherein the Applicant exhibits the GazetteNotice (No. 1093 and 1094 of 13. 2.2004), which is the sole piece ofEvidence she has of the alleged revocation of nominations.

10. The question is, should the evidence aforesaid and all that issaid in the Grounds in Support form part of the Statement of Factsor should it form part of the Verifying Affidavit?

11. In Commissioner General, Kenya Revenue Authority vs.Silvano Onema Owaki t/a Marenaa Filling Station., C.A.45/2001 (Kisumu),the court of Appeal said;

"We would observe that it is theVerifying Affidavit not the Statement to beverified, which is of evidential value in anApplication for Judicial Review. Thatappears to be the meaning of rule 1(2) ofOrder LIII."

12. The court went on to make reference to Supreme CourtPractice 1976 Vol. 1, paragraph 53/1/7 wherein it is said: -

"The facts relied on should be statedin the Affidavit (see R. vs. Wandsworth J%J.ex-parte Read [1942] 1 K.R. 281. Thestatement should contain nothing morethan the name and the description of theApplicant, the relief sought and thegrounds on which it is sought. It is notcorrect to lodge a statement of all thefacts, verified by an Affidavit."

13. In R. vs. Wandsworth* JJ (Supra), Viscount Calcedote, LJsaid, "the court will look at the Affidavit to see what the factsare."

14. Mullah's code of Civil Procedure, 16th edition Vol. 2 states atpage 2349 that "an Affidavit is a mode of placing evidencebefore the court."

15. "Verification"would seem to mean as defined by the LawDictionary by Streven H. Gifis, "an Affidavit, attachment to aStatement affirming the truth of that statement'or"confirmation of correctness, truth or authenticity ofpleading..."

16. Reading all these authorities together, the clear message isthat evidence in an Application under Order 53 should be in theAffidavit and not the Statement of Facts. Too many Applications forjudicial review seem to heap all the evidence in the Statement ofFacts and not the Affidavit.

17. In the instant case, it would seem that what the Applicantcalls Grounds on which the Application is sought is in fact all theevidence there is to the matter. To exhibit the decision which issought to be quashed as part of the Statement of Facts is alsountenable within the meaning and interpretation ascribed to Order53 Rule 2.

18. I must say something about the often confusing and thin linebetween "Grounds"and "Affidavit".As I have shown, theevidence is in the Affidavit and this is restricted to facts."Grounds"on the other hand ought to be general questions more oflaw than fact on which a party shall base its arguments. A cleardifference is for example found in Order 16 Rule (1) which states asfollows: -

"Any Respondent who wishes tooppose any motion or other Applicationshall file and serve on the Applicant aReplying Affidavit or a Statement ofGrounds of opposition, if any, not less thanthree clear days before the hearing date."

19. The Rules clearly do not use the word "and", and I thinkdeliberately, so that a party chooses to bring its reply by Affidavit(and therefore evidence) or file grounds of opposition (in the natureof matters of law to which no evidentiary proof is necessary).

20. Having stated as I have, the next question would then be, isthe defect so serious as to warrant setting aside of the leavegranted? The Court of Appeal has in Samuel Waniuauna& 6othersas well as Njuauna vs. Minister for Agriculture, C.A.144/2000approved and applied the principles in R. vs. Secretaryof State ex-parte Harbage {1978} 1 All E.R. 324where it wasthus stated: -

((it cannot be denied that leave shouldbe granted, if on the material available,the court considers without going into thematter in depth, that there is an arguablecase for granting leave. The appropriateprocedure for challenging such leavesubsequently is by an Application by theRespondent under the inherent jurisdictionof the court to the Judge who grantedleave to set aside such leave".

21. The Minister therefore, correctly came to challenge the grant ofleave in this matter, but the test to be applied is that the settingaside is a power to be used sparingly. In R. vs. Secretary of Statefor the Home Department ex-parte Begum {1989} 1 Admin L.R.110,Mc Gowan, J. said that the court's jurisdiction in suchinstances "should be very sparingly exercised'.

22. A leading English author, Michael Forham in his book"Judicial Review Handbook", 3rd edition at page 361, writes asfollows: -

"The jurisdiction to set aside is onewhich is sparingly exercised and thereason for invoking that jurisdiction in aparticular case must be specified..."

23. It also does not matter that the Defendant or Respondent hasa strong case as Law J. held in R. vs. Environment Agency ex-parte Learn {1998} Env. L.R. Dutranscript where he said;

"It cannot be emphasized too stronglythat such an Application (setting aside) isnot to be brought merely in the footing thata {Defendant} has a very powerful, evenoverwhelming case..."

24. The Court of Appeal in Kenya in approving all these decisionsput the matter beyond debate when in Aqa Khan EducationService Kenya vs.JR. ex-parte Ali Seif& 3 Others, C.A.257/2003it stated as follows: -

"We would caution practitioners thateven though leave granted ex-parte can beset aside on an Application that is a verylimited jurisdiction and will obviously beexercised very sparingly and on very clear-cut cases, unless it be contended thatjudges of the superior court grant leave asa matter of course. We do not think that iscorrect. Unless the case is an obvious one,such as where an order of Certiorari isbeing sought and it is clear that thedecision sought to be quashed was mademore than six months prior to theApplicant coming to court, and there istherefore, no prospects at all of success,we would ourselves discourage practitioners from routinely following thegrant of leave with Applications to setleave aside. Fortunately such Applicationsare rare and like the judges in the UnitedKingdom, we would also point out that themere fact that an Applicant may in the endhave great difficulties in proving his caseis no basis for setting aside leave alreadygranted."

25. In discussing the point raised in this Ruling regarding facts and where they should be properly placed, the court above had this to say,

"Lastly, it was contended that theStatement of Facts in support of theChamber Summons did not contain factswhich could be verified by the 1stRespondent's Affidavit. All we wish tostate on this point is that the Statement ofFacts could have been better drafted, butthat is not the same thing as saying that ithad no substance which the Learned Judgecould consider and came to a decision onthe issue of whether or not to grant leave.He considered what was in the statementand in the Verifying Affidavit and came tothe conclusion that he must grant leave."

26. I have no hesitation in agreeing with their Lordships of theCourt of appeal. It is not denied that the original Applicant soughtorders of Certiorari within time as the decision sought to bequashed is dated 13th February 2004. I did consider the substanceof the Application for leave and granted leave. There is nothing socompelling now to warrant setting aside in spite of theshortcomings which I have attempted to articulate above. Thoseare not such as to force my hand in using that sparingly usedpower.

27. In the event then, I think I have said enough to show that Ishould not allow the Application herein.

28. The Application dated 11. 3.2004 is hereby dismissed.

29. The Respondent/Applicant shall have costs of this Application only.

Orders accordingly.

Dated and delivered at Nairobi this 23rd day of April 2004

I.LENAOLA

Ag. JUDGE

23. 4.04

Before Lenaola Ag. J.

Amos CC

Mr. Meso for the Respondent/Applicant

Mr. Musilli for applicant/Respondent

Ruling read

I. LENAOLA

Ag. JUDGE

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