[2022] KEHC 15335 (KLR)

Republic v Pannju Agencies Company Limited & another; Pop Metal Fabricators and Hardware Limited (Exparte Applicant) (Miscellaneous Application E015 of 2022) [2022] KEHC 15335 (KLR) (Judicial Review) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15335 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Application E015 of 2022

AK Ndung'u, J

November 11, 2022

Between

Republic

Applicant

and

Pannju Agencies Company Limited

1st Respondent

Chief Magistrate, Milimani Law Courts

2nd Respondent

and

Pop Metal Fabricators and Hardware Limited

Exparte Applicant

Judgment

1. A brief background to this litigation reads as follows;on the January 21, 2022, the 2nd respondent while presiding over Milimani MCCC Misc No E064 of 2022; Pannju Agencies Company Limited vs Pop Metal Fabricators & Hardware Limited issued orders in terms of prayers 2 and 3 of a notice of motion dated January 20, 2022 lodged by the 1st respondent.

2. The orders issued were in the narrative that:'This matter coming up on January 21, 2022 for directions on the notice of motion dated January 20, 2022 before Hon AN Makau, upon hearing the counsel for the plaintiff/applicant; it is hereby ordered: 1. That the application is considered and allowed in terms of prayers 2 and 3. '

3. The import of the orders arising from the grant of prayers 2 and 3 of the notice of motion was that an immediate release of the applicant’s motor vehicles registration numbers XXXX, YYYY and ZZZZ which were in possession of the respondent illegally was ordered. The OCS Karen police station was ordered to ensure that there was peace and order in the fulfilment of the said order and to ensure that the order was enforced.

4. In this judicial review application, the said orders are impugned for being improper, unprocedural and abuse of discretion. The said orders were substantive final orders yet they were based on a miscellaneous application at an ex parte stage.

5. It is urged that the orders determined the ownership of the subject motor vehicles without hearing both parties. The applicant herein was thus denied the right to be heard contrary to the rules of natural justice. The orders also offended the clear provisions of order 40 of the Civil Procedure Rules.

6. There was material non-disclosure in that the 1st respondent failed to disclose the existence of active litigation between the parties in another competent court vide Milimani MCCC no E027 of 2022. It is contented that when served with the court documents in MCCC NO E027 of 2022, the 1st respondent instead of lodging a response thereto filed the impugned notice of motion under a certificate of urgency which was allowed by the 2nd respondent.

7. The 1st respondent in her replying affidavit avers that the 2nd respondent relied on the evidence before the court showing that the motor vehicles belonged to the 1st respondent. The 1st respondent did not take any illegal action in impounding and selling the vehicles as it had orders to do so. It is contended that the 2nd respondent did not act ultra vires as the orders granted were within its powers and discretion and ownership of the motor vehicles had been proved to the required proof.

8. A director of the 1st respondent, one Peter Kihika Njuguna has averred that director Rose Wangeci Kimamo moved the court irregularly without a resolution of the company. The court was in error to issue orders in MCCC NO E064 without confirming that the plaintiff herein had authority to file suit. Njuguna maintains that the vehicles were owned by the applicant herein.

9. The motion herein was canvassed through written submission. I have had occasion to consider the submissions and case law cited even on aspects I may not necessarily reproduce here.

10. From the pleadings, the affidavit evidence and submissions on record, the issues for determination are 3 viz:1. Whether the applicant has achieved the threshold for the grant of the judicial review orders sought.2. If in the affirmative, what orders should issue.3. Who bears the costs of the suit?

11. Under article 165(6) of theConstitution it is stated as follows: -'(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.'In exercise of this jurisdiction, the High Court may call for the record of any proceedings before any subordinate court or person, body or authority and make any order or give any direction it considers appropriate to ensure the fair administration of justice. This jurisdiction is distinct from the jurisdiction in judicial review. Mativo J inRepublic v Magistrates Court, Mombasa; Absin Synergy Limited (Interested Party) (Judicial Review E033 of 2021) [2022] KEHC 10 (KLR) summed it thus;'The power conferred to this court under article 165 (6) of theConstitution is used sparingly only when the lower court or tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction which is the case here. However, the High Court under the guise of article 165 (6) cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. For it to interfere, there must be a case of flagrant abuse of fundamental principles of law or it can interfere where the order has resulted in grave injustice. The fact that the learned magistrate assumed jurisdiction not expressly conferred upon him by the law and in a blatant breach of section 14 of the CPA is itself a proper case for this court to exercise its supervisory jurisdiction to prevent grave injustice and abuse of the law.’

12. The extent of the court’s jurisdiction in judicial review is well settled. The court in Republic v Public Procurement Administrative Review Board & 2 others ex parte Rongo University succinctly laid down the scope of judicial review which is not an appeal but rather it deals with the decision-making process not merits of a decision.

13. In Republic v Magistrates Court, Mombasa; Absin Synegy Limited (Interested Party) (supra) the judge illuminated the issue further and stated;'Judicial review is the review by a judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction - reflecting the role of the courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised. The role of the court in judicial review is supervisory. It is not an appeal and the court should not attempt to adopt the forbidden appellate approach. In the instant case, the impugned decision is a judicial function, arrived at outside the confines of the jurisdiction conferred to the court by the law, which to me is amenable to both judicial review and supervisory jurisdiction.'

14. In Municipal Council of Mombasa vs Republic & Umoja Consultants Ltd Civil Appeal No 185 of 2001the Court of Appeal expressed itself as follows:'Judicial review is concerned with the decision making process, not with the merits of the decision itself: the court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision. It is the duty of the decision maker to comply with the law in coming to its decision, and common sense and fairness demands that once the decision is made, it is his duty to bring it to the attention of those affected by it more so where the decision maker is not a limited liability company created for commercial purposes but it a statutory body which can only do what is authorised by the statute creating it and in the manner authorised by statute.'

15. Lastly on the applicable legal principles, in the Uganda case of Pastoli vs Kabale District Local Government Council and Others [2008] 2 EA 300. It was held while citing Council of Civil Unions vs Minister for the Civil Service [1985] AC 2 and an application by Bukoba Gymkhana Club [1963] EA 478 at 479 that:'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.'

16. This exposition of the law leads me to placing the facts disclosed in this matter in the proper perspective with a view to determining whether the threshold for judicial review orders is achieved.

17. It is common ground that the 1st respondent vide a notice of motion dated January 20, 2022 moved the court for orders and by a ruling dated January 21, 2022, the prayers were granted. The orders granted were mandatory orders and were issued exparte. The extracted order reads as follows;'This matter coming up on January 21, 2022 for directions on the notice of motion dated January 20, 2022 before Hon AN Makau, upon hearing counsel for the plaintiff/applicant; it is hereby ordered:1. That the application is considered and allowed in terms of prayers 2 and 3’.

18. Whereas the court had the requisite jurisdiction to entertain the matter, the decision made is on the face of it tainted with procedural impropriety. Final orders on ownership of the subject motor vehicles were made ex parte without hearing all parties. The orders were issued when, according to the record, the matter was before court for directions (not hearing). The applicant’s right to be heard was muzzled. The final orders were made on a miscellaneous application without a substantive suit and it does not help matters that, as stated by one of the directors of the 1st respondent, the initiator of the suit before the magistrate’s court had no authority of the 1st respondent through a resolution of the company to initiate the suit.

19. The right to be heard is a pillar in the tenets of natural justice. This was emphasized in Republic v Firearms Licensing Board & another Ex parte Boniface Mwaura [2019] eKLR where the court stated;'The Constitution recognizes a duty to accord a person procedural fairness or natural justice when a decision is made that affects a person’s rights, interests or legitimate expectations. It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.[77]. Such a drastic decision whether oral or written entitles the affected person to be supplied with the particulars of any allegations against him and an opportunity to challenge the allegations. Procedural fairness contemplated by article 47 and the Fair Administrative Action Act[82] demands a right to be heard before a decision affecting ones right is made, otherwise the decision will be struck down for being arbitrary, and, for not passing constitutional muster. I find no difficulty in concluding that the first respondent violated the rules of natural justice. On this ground alone, I am inclined to allow the application.

20. In light of the above, am satisfied that the proceedings before the magistrate’s court in the notice of motion dated January 20, 2022 were tainted with procedural impropriety and are amenable to judicial review.

21. So, what orders should issue? The applicant sought an order of certiorari to remove into this court and quash the orders issued by the 2nd respondent on the January 21, 2022 and all consequential orders and actions emanating therefrom and an order of prohibition prohibiting the 1st respondent from dealing, interfering, taking possession or otherwise disposing of motor vehicles registration Nos XXXX, YYYY and ZZZZ pending the hearing and determination of MCCOMMSU/E027/2022.

22. Mandamus, prohibition and certiorari are remedies granted by High Court to persons responsible for the exercise of administrative of judicial powers. These prerogative orders are only available against public bodies. Their origins lie in the expansion of common law in England and the jurisdiction of the Court of King Bench to acquire superintendence over the observance of law by officials. These orders are predicated upon the fact that without law, society cannot function with fundamental values such as social order, social justice and personal freedom. Today public authorities determine an overwhelming extent how much of these values are enjoyed. Their decision affect vast numbers of people collectively and individually. 'ipso facto' unlawful decision, must be available to judicial scrutiny hence judicial review. The social need for how and the protection of legality is violated when a public official exceeds his/her authority or does not use his/her power in the prescribed manner.

23. The prerogative writs of 'certiorari' derives from the Latin word 'certiorari' which means to be certified, informed, appraised or shown. Both in its embryonic days and today, the order is a supervisory prerogative writ over inferior courts and required the proceedings of that court to be transferred to the High Court and examined for validity. It meant the decision would be quashed. From the provisions of order 53 of the Civil Procedure Rules the applicant ought to move court within a period of six (6) months from the time the order, decree, judgment, conviction or other proceeding was made. The order of 'prohibition' issues where there are assumption of unlawful jurisdiction or excess of jurisdiction. It’s an order from the High Court directed to an inferior tribunal or body. Its function is to prohibit and/or forbid encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction. The order of 'mandamus' is derived from the Latin word 'mandare' meaning to command. It is issued in cases where there is a duty of a public or a quasi-public nature or a duty imposed by statute, it compels the fulfilment of a duty where there is a lethargy on the part of a body or officer concerned.

24. In our case the decision by the 2nd respondent is tainted with procedural impropriety and is liable to be brought before this court for quashing. The interest of justice would also demand prohibition of dealings in the subject chattels (where this has not taken place) pending the hearing and determination of MCCOMMSU/E027/2022.

25. With the result that the notice of motion dated February 4, 2022 is allowed in terms of prayers (i) and (ii). Each party is to bear its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 11TH DAY OF NOVEMBER 2022A. K. NDUNG'UJUDGE