[2022] KEHC 11415 (KLR)

Republic v Registrar Kenya Medical Laboratory Technicians & Technologists Board & 3 others; Owino (Exparte) (Miscellaneous Application 161 of 2019) [2022] KEHC 11415 (KLR) (Judicial Review) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11415 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Application 161 of 2019

J Ngaah, J

June 10, 2022

Between

Republic

Applicant

and

Registrar Kenya Medical Laboratory Technicians & Technologists Board

1st Respondent

Inspector General of Police

2nd Respondent

Director of Public Prosecutions

3rd Respondent

Attorney General

4th Respondent

and

John Oduor Owino

Exparte

Ruling

1. By a motion dated 13 June 2019, the applicant sought for the order of mandamus to compel the 1st respondent to issue him with a certificate of registration and a practising licence to enable him practise as a laboratory technician. His application was dismissed by this honourable court on 16 April 2020.

2. According to the judgment rendered by Mativo, J, it had emerged, in the course of the proceedings, that when the applicant presented himself before the Kenya Medical Laboratory Technicians and Technologists Board, he presented a certificate which turned out to belong to somebody else. The Board reported the matter to the police who investigated the applicant’s registration certificate and licence and established that these documents were forged. The applicant was then charged in Nairobi Criminal Case Number 552 of 2017 with two counts of making a document without authority contrary to section 357(a) of the Penal Code. He was convicted on each of these two counts and was fined Kshs. 25,000/= for each count or in default to serve six months’ imprisonment.

3. The applicant never disclosed this information to the court when he made his application for leave and it only came to light when the respondent filed their response to the application. The learned judge held the applicant’s conduct to have been a suppression of facts material to his application and therefore dismissed the application for non-disclosure, amongst other grounds.

4. The application before court is now seeking a review of the dismissal order. The application is by way of a motion dated 5 March 2021 and is filed under section 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rules 1(1) (a) (b) and 2(1), Order 22 Rule 22 of the Civil Procedure Rules.

5. The prayer for review is couched as follows:(ii)That thishonourable court be pleased to review its orders contained in the judgement dated 16th April 2020 and compel the registrar, Kenya Medical Laboratory Technicians and Technologist Board issue the applicants (sic) final results from Rift Valley Training Institute and a certificate of registration producing a practising licence for the said applicant forthwith.”

6. In the affidavit sworn by the applicant in support of his motion, he states, inter alia:4. That I have discovered new and important matter or evidence which after the exercise of due diligence it could not have been produced by me at the time the application was canvassed.5. That the new and important fact is that the Registrar, Kenya Medical Laboratory Technicians and Technologist Board is withholding practical and theory results from the Rift Valley Technical Institute and it has refused to register the (sic) me as a medical laboratory technician and technologist without a lawful and valid reason and without according the (sic) me a fair hearing at all.”

7. The application is opposed by the respondents and they have filed replying affidavits and grounds of objection to that end. There is, however, no much of a dispute on the fact that a judgment has already been rendered on the applicant’s main motion. The only question which, in my humble view, is largely a legal issue, is whether the judgment can be reviewed as sought by the applicant or at all.

8. In answering this question, I have considered the submissions filed by the learned counsel for the applicant and the respondent respectively.

9. To begin with, it must be remembered that judicial review proceedings are of a special nature and are, by and large, subject to no other procedural rules than those prescribed in order 53 of the Civil Procedure Rules and, of course, any of the provisions the Law Reform Act, cap. 26 relating to procedure. It follows that, if, for one reason or the other, one is dissatisfied with an order or a decree of the Court in judicial review proceedings, he cannot proceed against such an order or decree as if it is of a kind of any of those contemplated under order 45 of Civil Procedure Rules. In the event of such dissatisfaction, the only recourse would appear to be to lodge an appeal against the order or decree; this is what I gather from section 8(5) of the Law Reform Act; it says as follows:8. (5)Any person aggrieved by an order made in the exercise of the civil jurisdiction of the High Court under this section may appeal therefrom to the Court of Appeal.

10. I understand this section to say that the only option available to party aggrieved by an order in an application for a Judicial Review order is to appeal against the order, if he is inclined to; the Act does not provide for a window to invoke order 45 of the Civil Procedure Rules.

11. The Civil Procedure Act itself is clearer that section 80 which is the substantive provision of law for review is restricted to proceedings under that Act; Judicial Review proceedings are certainly not proceedings under the Civil Procedure Act and for this very reason, section 80 would not apply to judicial Review proceedings which are only subject to the Law Reform Act. That section reads as follows:80. ReviewAny person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. (Emphasis added).

12. It is clear from this section that the subject of the application for review must be a decree or order from which an appeal is allowed under the Civil Procedure Act; an order or a decree flowing from a judgment in a judicial review application would be excluded because it is not an appeal allowed by the Civil Procedure Act; rather, it is an appeal allowed by the Law Reform Act.

13. This is the position that has been also adopted by the Court of Appeal in **Biren Amritlal Shah &another v Repubic & Threeothers (2013) eKLR where the court noted that section 80 of the Civil Procedure Act is not applicable to judicial review proceedings; the court noted as follows:In determining whether the High Court had jurisdiction to hear the review, the question that arises is whether the CPA and the Rules can be applied in judicial review proceedings.

14. Section 80 of the CPA is clear. It stipulates that a review is allowed from an order or a decree from which an appeal is allowed or not allowed by the Act. It therefore follows that, the High Court can review its own orders or decrees in suits where the Court is exercising its ordinary jurisdiction.

15. With respect to judicial review the court is exercising powers under order 53 of the rules wherein the procedure of judicial review were set out. It is noteworthy that, there is no provision for review by the Superior Court of its own decisions in judicial review, once rendered.”

16. I am aware that in Nakumatt Holdings Ltd v Commissioner of Value Added Tax (2011) eKLR, the Court of Appeal has also held that as much as a judicial review order is not subject to the review proceedings under Order 45 of the Civil Procedure Rules, the court has residual jurisdiction in exercise of its inherent power to correct its own mistakes particularly where such mistakes are so glaring that they cannot be ignored. However, in the present application, although the applicant has cited sections 1, 1A and 3A of the Civil Procedure Act which basically spell out this Honourable Court’s inherent jurisdiction, he has specifically invoked Order 45 of the Civil Procedure Rules.

17. Even if the applicant’s application was amenable to review under the Civil Procedure Act and the Civil Procedure Rules, it would not have seen light of day for one further reason; the order which the applicant seeks to be substituted in place of the dismissal order is totally different from the order for which leave to file the judicial review proceedings was made. The prayer for the order in the main motion was couched as follows:That an order of mandamus to compel the registrar of medical laboratory technicians and technologists Board to issue a certificate of registration and the practicing licence to the ex parte applicant”And in the application for review, the applicant prays that:That this Honourable Court be pleased to review its orders contained in the judgement dated April 16, 2020and compel the Registrar, Kenya Medical Laboratory Technicians and Technologists Board issue the applicant’s final results from Rift Valley Training Institute and a Certificate of Registration producing a practicing licence for the said applicant forthwith.”

18. The prayer to compel the registrar to release the applicant’s purported results from Rift Valley Training Institute was never captured in the initial application and therefore it cannot be introduced in an application for review; assuming this was an ordinary application made under the Civil Procedure Act and Rules made thereunder.

19. It is also worth noting that under Order 53Rule 1(1), an order for any of the prerogative orders cannot issue unless leave for that particular order has been granted in accordance with the Rules. That Rule reads:No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.

20. It follows that even if the orders made under Order 53 of the Rules were subject to review under any of the provisions for review in the Civil Procedure Act and Rules, the applicant’s application would not pass the muster for praying for an order that was not the subject of the initial application.

21. Although he states that he has now discovered a “new and important matter of evidence” there is no such matter that has been demonstrated to exist. My assessment of the applicant’s application is that it is in reality an appeal camouflaged as an application for review. It is also apparent from the record that the applicant was always intent on filing an appeal rather than application for review. I say so because there is on record a notice of appeal dated 28 April 2020 filed under Rule 74 of the Court of Appeal Rules. That notice reads in part:Take Notice that John Oduor Owino the ex parte applicant herein, having been dissatisfied by the ruling of Justice John M. Mativo on April 16, 2020intends to appeal against the said decision entirely before the Court of Appeal of Kenya, Nairobi.”

22. If the applicant had made up his mind to pursue an appeal which, as noted, was the only recourse open to him, there was no point in filing the instant application. It does not matter that he may have been convinced that he has sufficient grounds upon which he could impeach the decision of this Honourable Court on appeal; those same grounds cannot be employed in an application for review.

23. In Abasi Balinda versus Fredrick Kangwamu &another (1963) E.A 558 a court was asked to review its order on costs on the ground that the court was alleged to have taken an erroneous view of the evidence and of the law relating to the question of whether a returning officer was a necessary party to an election petition. The court (Bennet, J.) appreciated that section 83 of theUganda Civil Procedure Ordinance (equivalent to section 80 of our Civil Procedure Act) conferred upon the court jurisdiction to review its own decisions in certain circumstances and order 42 (which is equivalent to order 45 of our Civil Procedure Rules) prescribed the conditions subject to which and the manner in which the jurisdiction should be exercised. In interpreting that jurisdiction and in the process, dismissing the applicant’s application, the court cited with approval a passage from Commentaries on the Code of Civil Procedure by Chitaley & Rao (4th Edition), Vol. 3 page 3227, where the learned authors explained the distinction between a review and an appeal and had this to say;"a point which may be a good ground of appeal may not be a ground for an application for review. Thus, an erroneous view of evidence or law is no ground for review though it may be a good ground for an appeal”

24. Again, our own Court of Appeal explained this much better in National Bank of Kenya Ltd v Njau (1995-1998) 2EA 249 (CAK); at page 253 of the judgment, the Court said: -"A review may be granted whenever the Court considers that it is necessary to correct an apparent error or omission on the part of the Court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground of review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of the law cannot be a ground for review.” (Underlining mine).

25. In conclusion therefore I hold that the applicant’s application is misconceived, incompetent and an abuse of the due process of the court. It is dismissed with costs. Orders accordingly.

SIGNED, DATED AND DELIVERED ON 10 JUNE 2022Ngaah JairusJUDGE