[2022] KEHC 11285 (KLR)

Republic v Principal Kadhi, Kadhis Court At Mombasa; Karama (Interested Party); Mohamed (Exparte) (Judicial Review E006 of 2020) [2022] KEHC 11285 (KLR) (3 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11285 (KLR)

Republic of Kenya

In the High Court at Mombasa

Judicial Review E006 of 2020

JM Mativo, J

June 3, 2022

Between

Republic

Applicant

and

The Principal Kadhi, Kadhis Court At Mombasa

Respondent

and

Ali Mohamed Karama

Interested Party

and

Amina Sheikh Mohamed

Exparte

Ruling

1. By a Chamber Summons dated December 8, 2022, the ex parte applicant sought leave to institute Judicial Review proceedings out of time. She also prayed that upon grant of leave as aforesaid, she be granted leave to apply for a writ of certiorari to quash the ruling rendered by the Kadhi on May 11, 2021 in succession cause No. 167 of 2015. She also prayed for leave to apply for an order of mandamus to compel the Kadhi to proceed and hear the said case in accordance with the law.

2. The application is premised on the grounds that:- the Kadhi made a finding that the Interested Party had not submitted to the jurisdiction of the court and in finding that he had no jurisdiction to entertain the matter; that the Kadhi failed to discharge his statutory duty; that the applicant’s advocate failed to advise the applicant on all available remedies; and, that it would be a manifest miscarriage of justice if this court were to uphold the statutory provisions premised on traditional common law principles on the face of the current constitutional dispensation.

3. At the ex parte stage, I directed that the question of grant of leave and whether the leave if granted shall operate as stay shall be determined inter partes. On March 22, 2022, the applicant’s counsel informed the court that the application for leave was erroneously dated 8th December 2022 instead of 8th December 2021. However, counsel for the Interested Party, Mr. Asige, opposed the oral application arguing that time is of essence in judicial review proceedings. I directed the applicant to file a formal application within 14 days in default the application shall stand dismissed.

4. The 14 days were to lapse on 5th April 2022. However, the applicant filed the application to amend dated 28th March 2022 on 6th April 2022, one day late triggering a Notice of Preliminary Objection dated 6th May 2022 filed by the Interested Party stating that the application is an abuse of court process having been filed outside the time contrary to the said court orders.

5. Counsel for the Interested Party submitted that the application dated 28th March 2022 was filed outside the time prescribed by this court. He submitted that the orders made on 22nd March 2022 had a default clause that the application dated 8th December 2021 would stand dismissed.

6. The applicant’s counsel argued that the application was filed one day late and that he could not recall the default clause. He cited article 159(2) (d) of the Constitution which requires courts to administer justice without undue regard to procedural technicalities and urged this court to allow the application. He argued that this being a court of justice is obligated to administer justice without undue regard to procedural technicalities. He submitted the Interested Party has not demonstrated the prejudice he will suffer if the application proceeds. He submitted that the Respondent will be afforded an opportunity to be heard if the application proceeds. He urged the court to exercise its discretion and allow the application to proceed on merit.

7. Counsel for the Attorney General did not take a position in the application.

8. Despite the diametrically opposed positions taken by the protagonists in this application, there is no contest that the application dated 28th March 2022 was filed out of time. However, despite acknowledging that the application was filed one day late, the applicants counsel never made any efforts to apply for extension of time.

9. Whenever a party to litigation fails to comply with any of the Rules, or time-periods contained in such Rules or prescribed by a court order, the court may condone such failure on application to court by the defaulting party. Nevertheless, condonation is not for the mere taking thereof, but the party in default is required to file an application for extension of time and show ‘good cause.’ The court has a wide discretion which must be exercised with regard also to the merits of the matter seen as a whole. The applicant is required to satisfy the court on oath that his action is clearly not ill-founded. The minimum the applicant must show is that his case or defence is not patently unfounded and that it is based upon facts (which must be set out in outline) which, if proved, would constitute a defence/cause of action. The most important consideration however, is whether it is in the interests of justice to grant such condonation. Reasons for lateness is not the only consideration. The applicant’s prospects of success in the suit and the importance of the issues to be determined are also relevant factors.

10. An applicant must show good cause and the question of prejudice does not arise if it is unable to do so. The court will refuse to grant the application where there has been a reckless or intentional disregard of the rules of court, or failure to comply with a court order prescribing the time frame for filing a proceeding or the court is convinced that the applicant does not seriously intend to proceed. The application must be bona fide and not made with the intention of delaying the opposite party’s claim.

11. As stated above, the applicant never applied for extension of time. In the absence of agreement between the parties, the court may upon application on notice and on good cause shown, make an order extending or abridging any time prescribed by these Rules or by an order of court or fixed by an order extending or abridging any time for doing any act or taking any step-in connection with any proceedings of any nature whatsoever upon such terms as to it seems meet.

12. It is well established that the requirement of “good cause” gives a court a wide discretion. Three requirements have been crystallized in this regard. One, an applicant should file an affidavit satisfactorily explaining the delay. In this regard, it has been held that an applicant must at least furnish an explanation of his or her default sufficiently fully to enable the court to understand how it really came about and to assess his or her conduct and motives.

13. Two, an applicant should satisfy the court on oath that he or she has a bona fide case/defence. In this regard, it has been held that at a minimum the applicant must show that his or her plaint/defence is not patently unfounded and that it is based upon facts which, if proved, would constitute a cause of action/defence. The grant of the indulgence sought must not prejudice the other party in any way that cannot be compensated for by a suitable order as to postponement and costs.

14. Talking about the requirement to demonstrate a patently well-founded case, the applicant filed an application seeking leave to institute judicial review proceedings out of time on 10th March 2022. The applicant decision sought to be reviewed was rendered on 11th May 2021. Order 53 rule 2 of the Civil Procedure Rules, 2010 reads: -“2. Time for applying for certiorari in certain cases [Order 53, rule 2. ]Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

15. In construing a statutory provision, the first and the foremost rule of construction is that of literal construction. All that the court has to see at the very outset is, what does the provision say? If the provision is unambiguous and if from that provision the legislative intent is clear, the other rules of construction of statutes need not be called into aid. They are called into aid only when the legislative intention is not clear. But the courts would not be justified in so straining the language of the statutory provision as to ascribe the meaning which cannot be warranted by the words employed by the Legislature. In interpreting a statute, the court should give life to the intention of the lawmaker instead of stifling it.

16. The operative word in the above provision is "shall." The Black's Law Dictionary, defines the word "shall" as follows: -“As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary significance, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning: denoting obligation. It has a peremptory meaning, and is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears."

17. The definition goes on to say "but it may be construed as merely permissive or directory (as equivalent to "may"), to carry out the legislative intention and in cases where no right or benefits to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense." So "shall" does not always mean "shall." "Shall sometimes means "may."

18. The classification of statutes as mandatory and directory is useful in analyzing and solving the problem of what effect should be given to their directions.1 But it must be kept in mind in what sense the terms are used. There is a well-known distinction between a case where the directions of the legislature are imperative and a case where they are directory.2 The real question in all such cases is whether a thing has been ordered by the legislature to be done and what is the consequence if it is not done. The general rule is that an absolute enactment must be obeyed or fulfilled substantially. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance.1Dr Sanjeev Kumar Tiwari,Interpretation of Mandatory and Directory Provisions in Statutes: A Critical Appraisal in the Light of Judicial Decisions. International Journal of Law and Legal Jurisprudence Studies: ISSN:2348-8212 (Volume 2 Issue 2 ).2Ibid.

19. It is the duty of courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be considered. The Supreme Court of India has pointed out on many occasions that the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other.

20. A provision in a statute is mandatory if the omission to follow it renders the proceeding to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceeding, and a statute may be mandatory in some respects and directory in others.3 One of the important tests that must always be employed in order to determine whether a provision is mandatory or directory in character is to consider whether the non-compliance of a particular provision causes inconvenience or injustice and, if it does, then the court would say that, the provision must be complied with and that it is obligatory in its character.43Subrata vs Union of IndiaAIR 1986 Cal 198. 4See DA Koregaonkar vs State of Bombay, AIR 1958 Bom 167.

21. The word "shall" when used in a statutory provision imports a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.5 The Longman Dictionary of the English Language states that "shall" is used to express a command or exhortation or what is legally mandatory.65See DrArthur Nwankwo and Anor vs Alhaji Umaru Yaradua and Ors (2010) LPELR 2109 (SC) at page 78, paras C - E, Adekeye, JSC .6This definition was adopted by the Supreme Court of Nigeria in Onochie vs Odogwu[2006] 6 NWLR (Pt 975) 65.

22. Regard must be had to the long-established principles of statutory interpretation. At common law, there is a vast body of case law which deals with the distinction between statutory requirements that are peremptory or directory and, if peremptory, the consequences of non-compliance. Discussing the use of the word shall in statutory provision, Wessels JA laid down certain guidelines: -“….The word ‘shall’ when used in a statute is rather to be construed as peremptory than as directory unless there are other circumstances which negative this construction…”77Sutter vs Scheepers1932 AD 165, at 173 - 174.

23. The above being the clear prescriptions of the meaning of the word shall, Parliament in its wisdom prescribed a period of 6 months within which applications for Certiorari may be brought. Time starts running from the date of the order sought to be quashed. This being the position with a delay of about 10 months, the applicant cannot be said to have a patently well-founded case.

24. The proposition that the applicant will have to surmount the hurdle erected by the above provision is reinforced by several judicial pronouncements rendered pre-2010 and post 2010 interpreting the provisions of order 53 of the Civil Procedure Rules, 2010. In Ako v Special District Commissioner, Kisumu & Another8 the Court of Appeal was emphatic that "it is plain that under sub-section (3) of section 9 of the Law Reform Act9 leave shall not be granted unless application for leave is made inside six months after the date of the judgment." The Court of Appeal proceeded to hold that the prohibition is statutory and is not therefore challengeable under procedural provisions of the Civil Procedure Rules, which permits for enlargement of time.8Civil Appeal No. 27 of 1989, Nyarangi JA., Gachuhi JA., Kwach Ag. JA.9Cap 26, Laws of Kenya.

25. Similarly, the Court of Appeal in Wilson Osolo v John Ojiambo Ochola & Another10 the Court of Appeal stated: -10{1995} e KLR.“It can readily be seen that Order 53 Rule 2 (as it then stood) is derived verbatim from Section 9(3) of the Law Reform Act. Whilst the time limited for doing something under the civil Procedure Rules can be extended by an application under order 49 of the Civil Procedure Rules that procedure cannot be availed of for the extension of time limited by statute, in this case, the Law Reform Act.” There is no provision for extension of time to apply for such leave in the Limitation of Actions Act (cap 22, Laws of Kenya) which gives some limited right for extension of time to file suits after expiry of a limitation period. But this Act has no relevance here.’’

26. It is also important to point out that the provisions of order 50 rule 6 of the Civil Procedure Rules, 2010 which grant the court power to enlarge time cannot override the express provisions the Statute, namely, section 9 (3) of the Law Reform Act.11 In this regard, I find useful guidance in Re an application by Gideon Waweru Githunguri12 whereby the colonial Supreme Court held that the said section imposes an absolute period of limitation and Raila Odinga & Others vs Nairobi City Council13 in which it was held that:- (i) the Rules under the Act cannot override the clear provisions of Section 9 (2) of the Act; (ii) an act of Parliament cannot be amended by subsidiary legislation; (iii) Parliament in its wisdom has imposed this absolute period of six months and it is the Parliament alone which can amend it.11Ibid.12{1962} 1 EA 520. 13{1990- 1994} 1 E.A 482.

27. In Republic vs Public Procurement Administrative Review Board ex parte Syner-Chemie14 the court correctly observed that there are two schools of thought on the issue whether the court can extent time in Judicial Review proceedings. The first, the court observed is the school which propagates that no such enlargement of time is envisaged in Order 53 of the Civil Procedure Rules. The court added that the proponents argue that owing to the special procedure adopted in Judicial Review proceedings, a party, other than invoking Order 53 of the Civil Procedure Rules cannot invoke the provisions of the Civil Procedure Act15 and the Rules made there under.1614Republic v Public Procurement Administrative Review Board ex parte Syner-Chemie {2016} eKLR.15Ibid.16Citing See Republic v Kahindi Nyafula & 3 Others Exparte kilifi South East Farmers Co- Operative Society [2014] e KLR by Angote J, applying Welamudi v The Chairman Electoral Commission of Kenya [2002] KLR 285and Republic V Kenya Bureau of Standards & Others [2006] EA 345.

28. The court proceeded to hold that there is the second school of thought which supports the position that although the court has no jurisdiction to enlarge the six months period given by the Law Reform Act,17 the learned Judge proceeded to state:-17Cap 26, Laws of Kenya.“From the rival positions presented to this court, the question is whether this court, in the present constitutional framework should still let the former intricacies and obscurities hamper the provision of effective redress to facilitate access to justice for all or should it adopt a flexible approach, which is not necessarily crafting or innovating its jurisdiction, but bearing in mind that much of the old case law on the reach of the Judicial Review remedies may not be of such practical relevance today. But because the Legislature has given no explicit direction on the issue, the Court must adopt the interpretation of the silent provisions that best effectuates the legislative intent.In arriving at such a view, this court appreciates that Judicial Review has its origin in common law which is still applicable in our statutes today (see section 12 of the Fair Administrative Action Act, 2015), and which is judge made law, law made by judges in the absence of relevant constitutional or statutory provisions (see Kenneth Culp Davis, Administrative Law Treatise 2:18 at 140 2 ed 1978.

29. After analysing the law and comparable jurisprudence, the court proceeded as follows: -97. With the enactment of Fair Administrative Action Act, 2015 which Act implements Article 47 of the Constitution to give effect to the right to fair administrative action, the above Act effectively modifies the Law Reform Act and order 53 of the Civil procedure Rules on flexibility in the application of the law to the circumstances of a particular case, with the sole intention of achieving substantive justice for the parties and especially where no prejudice is shown to be occasioned to the respondents or interested parties herein.98. In my modest view, no statute can be enacted with the sole intention of doing an injustice to parties. Article 47 of the constitution elevates fair administrative action from a common law action to a constitutional right under the Bill of rights. The same position applies to Article 48 of the Constitution which commands the state to ensure that all persons are facilitated to access justice without any impediments.99. Further, article 20(3) (a) of the Constitution commands that in applying a provision of the Bill of Rights like in this case Article 47 of the Constitution on the right to fair administrative action which is invoked by the ex parte applicant in this case, a court should ‘develop the law to the extent that it does not give effect to a right or fundamental freedom’, and to ‘adopt the interpretation that most favours the enforcement of a right or fundamental freedom.”

30. Our courts which have adopted a strict interpretation of the above rule have based their determination on the interpretation of the word shall in the above provisions which they held bestows a mandatory obligation. The Court Appeal in Ako vs Special District Commissioner, Kisumu & Another18 held that the prohibition is absolute and any other interpretation or view of the particular provision would be doing violence to the very clear provisions of sub-section (3) of Section 9 of the Law Reform Act.19 In Re an application by Gideon Waweru Gthunguri20 the colonial Supreme Court held that the said section imposes an absolute period of limitation.18Civil Appeal No. 27 of 1989, Nyarangi JA., Gachuhi JA., Kwach Ag. JA.19Supra.20{1962} 1 EA 520.

31. Further, in Republic v Kenya School of Law & Council of Legal Education ex parte Daniel Mwaura Marai21it was held that the provisions of a subsidiary legislation can under no circumstances override or be inconsistent with any act of Parliament be it the one under which they are made or otherwise. Also relevant is section 31 (b) of the Interpretation and General Provisions Act22 which provides that no subsidiary legislation shall be inconsistent with the provisions of an Act of Parliament.21{2017} eKLR.22Cap 2, Laws of Kenya.

32. InRepublic v Council of Legal Education & Another ex parte Sabiha Kassamia & Another23 this court, on July 18, 2018 dismissed an application which had been filed outside the six months provided under the law. Unlike in the instant case, there was application before the court for extension of time. Apparently recognizing the difficulty caused by the above provisions which imposes a stringent limitation, Odunga J. by way of obiter in Republic v Mwangi Nguyai & 3 Others24 observed that it was high time section 9 of the Law Reform Act25 was amended to provide for extension of time in cases where a strict adherence to the limitations manifests a miscarriage of justice and gave the example of situations whereby a decision is made and for some reasons the same is not made public with the result that the persons affected thereby are not aware of the decision until after the expiry of the limitation period.23JR APP No. 703 of 2017. 24High Court Constitutional Petition No. 89 of 2008. 25Cap 26, Laws of Kenya.

33. I am conscious that before me is not an application for extension of time. But I spared in the foregoing paragraphs to underscore the fact that the applicant has not in any manner demonstrated that she has a patently well-founded case.

34. The third consideration is that the applicant states that the Interested Party stands to suffer no prejudice if the application proceeds. I do not fully agree with this submission. First, the application was filed outside time. The applicant had ample time to seek extension of time after he was served with the Preliminary Objection. He never did so, thereby weakening his position. Two, as discussed above, the impugned decision was rendered on 11th May 2021.

35. No doubt parties and their Legal advisers should not be encouraged to become slack in their observance of the Rules or compliance with court orders, which are an important element in the machinery for the administration of justice. But on the other hand, technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits. Before me is not a technical objection, but a serious omission to comply with a court order in a tine bound proceeding.

36. Article 159 (2) (d) of the constitution is not a panacea for all problems. The applicant cannot seek refuge under Article 159 (2) (d) of the constitution having under the present circumstances considering the failure to seek extension of time even after being confronted with the instant Preliminary Objection. Additionally, the applicant disobeyed an express court order. Article 48 of the Constitution cannot be used as a shield where a party flouts a court order. Above all, Access to Justice cuts both sides. The Respondents and the Interested Parties are equally entitled to access justice. Access to Justice is equally flouted when a Respondent or an interested Party is dragged to court unnecessarily. In the instant case, the ex parte applicant is not only moving the court out of time, but also, he failed to seek extension of time. I find and hold that the Preliminary Objection succeeds. These proceedings stand dismissed. I make no orders as to costs.

Orders accordingly

SIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 3RD DAY OF JUNE 2022. JOHN M. MATIVOJUDGE