1. The application before me is the one dated 12th February 2024 wherein the applicants are seeking the following orders:
1. Spent.
2. THAT an order of certiorari be and is hereby issued quashing the Sports Disputes Tribunal decision dated 2ndFebruary 2024 temporarily restraining the 1st, 2ndand 3rd Applicants from engaging in any activity regarding the Kenya Karate Federation, and directing the 2nd Interested Party to take up the conduct of the National Karate Trials scheduled for 3rd and 4th February 2024.
3. THAT an order of certiorari be and is hereby issued quashing proceedings pending before the 2ndRespondent.
4. THAT costs of this Application be provided for.
The Application is predicated on the grounds set out in the Statutory Statement annexed thereto and the verifying affidavit of dated 12th February 2024 and supplementary Affidavit.
The Application is opposed by way of replying Affidavit and a Notice of Preliminary Objection.
The Applicants case:
2. To kick off their case, The applicants believe that the Preliminary Objection is not merited.
3. The Preliminary Objection is predicated on the assertion that the Applicants’ Notice of Motion does not comply with the Civil procedure rules as the Affidavits are not attested nor commissioned by any Commissioner of Oaths and that the same was scandalous, frivolous, and vexatious thus meeting the grounds set out in Order 2 Rule 15 of the Civil Procedure Code and it is incurably defective.
4. It is their case that it is trite law that judicial review proceedings are a special jurisdiction that is neither criminal nor civil.Accordingly, the Civil Procedure Act and the rules made thereunder are inapplicable.
5. Reliance is placed in The High Court decision in M.M. Ole Keiuwa & Another V Yash Pal Ghai [2002] eKLR at page 2/3 of the decision emphasized that the proceedings under Order 53 of the Civil Procedure Rules are special proceedings in nature and that Order 53 stands alone exclusive of other provisions of the Civil Procedure Rules and Act, and that Section 3 of the Act fortifies this position by recognizing special jurisdiction or procedure prescribed by or under any other law for the time being in force.
6. They further rely on Republic vs Kahindi Nyafula & 3 Others Exparte Kilifi South East Farmers Co-operative [2014] e KLR where the Angote J citing Welamondi V Chair Electoral Commission of Kenya eKLR [2002] 285 and Republic vs KBS & Others [2006] EA 345 where it was held inter alia, that Judicial Review proceedings under Order 53 of the Civil Procedure Rules are a special procedure and that a party other than invoking Order 53 cannot invoke the provisions of the Civil Procedure Rules made there under.
7. It is their case that the 1st and 2nd Respondents' challenge on the Civil Procedure Rules and more specifically on Order 2 Rule 15 of the Civil Procedure Code front is misguided, irregular and not guided by the law.
8. Away from the Preliminary Objection,it is their case that The 1st Interested Party appointed the 2nd and 3rd Applicants to be the National Karate Coaches for a period of three (3) years ending May 2024.
9. Therefore, it was completely irregular and unlawful for the Tribunal Chair to restrain the 1st, 2nd and 3rdApplicants from engaging in any activity regarding the Kenya Karate Federation.
10. They submit that as a public officer, the Tribunal is expected to act with probity and to exercise its discretion judiciously. In the Court of Appeal in Municipal Council of Mombasa –Vs- Republic and Umoja Consultants Ltd, Civil Appeal No. 185 of 2001:-
“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 person 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.”
11. The Applicants herein were never heard or given an opportunity to be heard before the said orders of 2nd February 2024 were issued.
12. The impugned orders of 2nd February 2024 were made ex-parte and yet they had far-reaching consequences, especially in light of the upcoming 13thAfrican Games in Accra Ghana, scheduled for 8th – 24th March 2024.
13. It is the reason that the Applicants have not participated in the 13th African Games in Accra Ghana.
14. The 1st, 2nd, and 3rd Applicants were stopped from engaging in any activity regarding the Kenya Karate Federation.
15. This blatant, infinitum declaration by the Court given ex parte and without hearing the Applicants herein is the main reason why the Applicants have sought the intervention of this Court.
16. The Court of Appeal reiterating its judgment in Commissioner of Lands –Vs- Kunste Hotel (1997) eKLR in Emfil Ltd –Vs- Attorney General and 2 Others [2014] eKLR stated that judicial review is not concerned with private rights or merits of the impugned decision but to ensure that individuals are given fair treatment by the authorities to which he is subject.
17. The Applicants believe that they are entitled to cost and we pray that the same be awarded.
The 1st Respondents Case;
18. In opposing the application, James Mwangi Gikonyo argues that the Affidavit of Edwin Otieno Gendi, the 1st Applicant is inadmissible since the Supporting and Verifying Affidavits have not been signed nor sworn by the deponent.
19. Both the Supporting Affidavit and Verifying Affidavit dated 12th January 2024 have not been commissioned.
20. The 4th to 11th Applicants have been misjoined in the Application.
21. The 4th to 11th Applicants have not fulfilled the burden of proof as they have not proven that they are part of the National Karate Team, the selection, and neither any documentation from the 1st Interested Party of their appointment and/or nomination as such.
22. It is his case that The Affidavits relied upon by Applicants are dated 12th January 2024 more than 19 days before the matter was brought up in the Sports Tribunal, that is on 1st February 2024. This shows the mischief of the Applicants in this matter and puts into question the matters they are attesting to.
24. The 1st and 2nd Applicants claim to have been contracted to organize and train the Kenya Karate Athletesfor the 13th African Games.
25. However, they have not adduced any documentation or evidence proving who gave them the instructions to do so, the same is thus unsubstantiated.
26. The 1st and the 2nd Applicants are not licensed Coaches under regulation 12 of the Sports Act Subsidiary Legislation, 2016 and they cannot therefore purport to be Coaches of the National Karate Team.
28. The registered interim officials‟ ceased to be in office after the 120 days stipulated on the Judgement dated 20th June 2023 in E003 & E008 OF 2023 Consolidated Suit under Order.
29. Therefore, the Federation is inactive and not manned as it currently has no officials to run its affairs.
30. The 1st, 2nd, and 3rd Respondents are ordinary Karate members who cannot purport to appoint themselves as the Technical Committee or the Technical Directorate or Organising Committee without following due process under the KKF Constitution under Section 39(k) and Section 45(iv)and upon approval by Council Meeting.
31. The Applicants are all strangers to the 1st Interested Party as the Federation had only three “interim officials” who currently stand suspended as per the orders of the Tribunal dated 28th November 2023 and as such the Federation has no natural persons conducting its affairs and it is therefore misguiding for the Applicants to purport to act on its behalf without any mandate.
32. It is their case that the 1st Applicant could not and is not contracted as a coach as he is not a licensed coach.
33. The 1st Interested Party was under the three interim officials who did not have the mandate to make any such appointments and could only rely on the recommendations of a Technical Committee as stipulated under Kenya Karate Federation(KKF) Constitution section 39(k).
34. The Technical Committee has from registration to date never in existence as it is supposed to be ratified at a Council Meeting as stipulated under section 45 of the KKF constitution which has never been held as per section 30(c) of the KKF Constitution The last known meeting was in 2018 a fact that is not disputed by the 1st Interested party on the Judgement dated 20th June 2023 under Paragraph 96.
35. There are no credentials of the 2nd to 11th Applicants, their roles in the Federation and proof of their Appointments from the 1st Interested Party.
36. The orders dated 2nd February 2024 issued by the Sports Dispute Tribunal are justified and valid in their own right and it would be unfair and unjust for this Honorable Court to vacate them and grant the prayers of the Applicants in this Application.
37. On or about 12th January 2024 the 1st, 2nd, and 3rdApplicants sent out bulletins to a select membership of the Kenya Karate Federation under the guise that they are the Technical Directorate as well as the Organising Committee spearheading the National Trials of the Kenya Karate Team for selection of the athletes to represent Kenya at the 13thAfrican Games scheduled for 8th to 23rd March 2024.
38. It is peculiar to note that the bulletin is not signed by any official of the 1st Interested Party which was not a possibility asthere are no officials to do so.
39. On the 28th November 2023 vide E003 & E008 OF2023 Consolidated suit through the Sports Tribunal through its Ruling suspended the 1stinterested party officials and then directed that a caretaker committee be appointed to run the affairs of the Federation pending an elective AGM.
41. The registered interim officials‟ ceased to be in office after the 120 days stipulated on the Judgement dated 20th June 2023 and thus the Applicants are contemptuous masqueraders who if not stopped will keep disobeying lawful court orders and continue to interfere with operations of the 1st Interested Party.
42. The 1st, 2nd, and 3rd Applicants are fully aware that judgment suspending the interim officials and the impending appointment of a caretaker committee is valid hence the use of the terms ognizant of the political development of our beloved KKF‟ in the bulletin on page 2, they circulated.
43. The 1st, 2nd, and 3rd applicants have misled the 2nd interested Party and has led to the 2nd interested Partypurportedly issuing instructions to the 1st, 2nd, and 3rdapplicants with “purpose to keep Karate activities running for the benefit of the common Karate- ka”, inferred from page 2 of the bulletin, without a shred of authority to take such directions and hence making the instructions malicious and contemptuous of the Judgement dated 20th June 2023 and Ruling dated 28th November 2023 blatantly by attempting to usurp the powers of the National Executive Committee and the supreme decision making organ of the Federation which is the Annual General Meeting.
44. The 1st, 2nd, and 3rd Applicants cannot claim to have been instructed by the 2ndinterested party, this thus proves pre-meditated acts under the guise of Karate National trials as a blatant attempt to circumvent the Ruling issued by the Honorable Tribunal dated 28th November 2023.
45. The 1st Interested Party Interim Officials stand suspended until the same is vacated by a lawful Court and therefore it goes without saying that nobody can act on its behalf until the caretaker committee is formed as per the Orders of the Tribunal dated 28th November 2023 and elections of the Federation are met.
46. The Applicants have given themselves the powers of the National Executive Council, the Annual General Meeting, and the Technical Committee.
47. All these institutions have different roles and powers as per Sections 45 and 46 of the KKF Constitution which cannot beperformed by three individuals without any mandate whatsoever. The purported illegal, unfair, and unprocedural selection that happened on the 3rd and 4th of February 2024 was to be performed only by these institutions which are not in place.
48.The activities outlined in the Supporting Affidavit of the 1st Applicant of the errands he has run are presumptuous.
50. The 1st, 2nd and 3rd Applicants have appointed themselves the Technical Directorate and the Organising Committee where they have gone ahead and created a list of athletes that will be competing in the National Karate Trialscheduled for 3rd and 4th February 2024.
51.The list is signedand authenticated by the 1st Applicant as a member of the Organising Committee who is a stranger to themanagement of the Federation.
52. The 1st Applicant a member of the Organising Committee went ahead and rejected 21 persons from participating in the Trials.
53.According to him an opinion formed from experience as a previous member of the Karate National Team from 2007 to 2021, that a passport application can be fastened if an individual is selected to represent Kenya as an athlete.
54.Therefore, it was unfair for the 1st, 2nd, and 3rd Applicants to disqualify the 21 athletes without assessing their technical capabilities to represent Kenya in the 13th African Games. The athletes ought to have been disqualified onmerit and not technicalities.
55. It is the role of the 2nd Interested Party to facilitate the issuance of visas, passports, and other travelling documents to athletes, coaches, and officials as stipulated under clause 5.3.4.23 of the Sessional Paper No. 3 of 2005.
56. Therefore, were the 2nd Interested party to take up the entire selection without the involvement of the 1st, 2nd, and 3rd Applicants justice will not only be done but be seen to be done too.
57. The selection conducted on the 3rd and 4th of February 2024 is null and void as there was no one in the Federation to conduct it, no National Executive Council and the Technical Committee, there was no Selection Committee, the call for the trials was done to a select few instead of being a nationwide affair, and a majority of the athletes that wanted to participate were locked out.
58. Contrary to paragraph 12 of the Supporting Affidavit he did not take part in selection in any way either passively or actively nor did he register a team.
59.The Applicants cannot claim to have their Constitutional rights violated when they did not exist in this case and they have not substantiated how they have beenviolated.
60.The 1st Applicant is neither an Official nor an employee of the Federation and thus he is put to strict proof of the employment status from the job offer and the payment made to date on the alleged employment including the returns filed on the Income with Kenya Revenue Authority.
61. It is the 1st Interested Party who selects and appoints coaches for international assignments as per its constitution section 39(k), it is therefore uncharacteristic that the 1st Applicant alleges to have such an appointment for the 13th African Games when the Federation at the moment is incapacitated.
62. The 1st Respondent that thePreliminary Objection dated 23rd February 2024 should be allowed.
63. The 4th to 11th Applicants have been misjoined in the Application and should be struck out as they were not parties to the main suit and no leave has been sought to enjoin them.
64. The matter giving rise to this Judicial Review was between the 1st to 3rd Applicants, hence the Orders of the 2nd Respondent in dispute do not affect the 4th to 11th Applicants and neither shall the orders of this Honorable Court.
65. Further, none of the issues, subject matter, nor the prayers sought in the pleadings of the Applicants seem to affect the 4th to 11th Applicants.
66. It is their case that The Affidavits being relied upon offend the provisions of theOaths and Declarations Act Cap 15 Laws of Kenya and theCivil Procedure Rules and the Affidavits have to be signed and commissioned.
Section 4 of Oaths and Declarations Act provides that “a commissioner for oaths may, by virtue of his commission,in any part of Kenya, administer any oath or take any afidavit for the purpose of any court or mater in Kenya, including maters ecclesiasticalandmatersrelating to the registration ofany instrument, whetherunder an Actor otherwise, andtake anybailorrecognizance in orfor the purpose ofany civil proceedingin the HighCourt or any subordinate court”.
67. The Notice of Motion and the Statutory Statement all dated 12th February 2024 are not properly in Court as the same has no affidavits.
68. It is their case that Article 159(2)(d) of the Constitution of Kenya 2010 cannot cure the error as it is not just a procedural issue but a substantive issue as explained in and hence the pleadings are incurably defective.
69. The pleadings additionally breach Order 8, Rule 7 of the Civil Procedure Rules because the new application does not state the rule under which the amendment was made and the Application should be struck out
71. The Respondent further argues that the matter before this Honorable is moot and an academic exercise.
72. At the time that this Honorable Court delivers its judgment the same would have been overcome by events and thus a waste of Court's scarce resources since the Karate Games in the 13th African Games werescheduled to happen from 7th to 9th March 2024 and thatthey have already occurred.
74.Thus leaving the claims and prayers of the Applicants baseless and not grounded in facts, itgoes without saying that the orders and directions that will beissued herein will be abstract, academic, or hypothetical.
75. The main reason the Applicants are in Court was in a view toattend and participate in the 13th African Games which as explained have already occurred.
76. The 1st to 3rdapplicants are also in Court because they were barred from engaging in any Karate activities regarding the Kenya KarateFederation.
78. In any event, there is already in place a Caretaker Committee that was appointed on 27th February 2024.
79. Therefore, the Orders of this Court will be of no use to the Applicants making this whole exercise moot.
87. The Application aimed at Registering the KKF under the Sports Act 2013 after the period allowed for Transition could only hold the Official as interim officials and not substantive officeholders. Therefore, they could not make any appointments in the commissions least of all National Team Coaches.
88. Section 47 of the Kenya Karate Constitution allows the National Executive Committee to delegate its powers to committees and commissions established under it. Since there were no officials to make such appointments and neither was Annual General Meeting held to constitute the said committees, the 1st to 3rd Applicants cannot purport todefy the 1st Interested Party’s Constitution and several CourtOrders yet still seek refuge in this Honorable Court. He who comes to equity must come with clean hands and the hands of the Applicants are extremely dirty making their actions of conducting the Selection a nullity.
90. The 1st Respondent reiterates the contents of his Supplementary Affidavit dated 14th March 2023, particularly Paragraphs 7 to 10 with regards to the 1st to 3rd Applicants'position as National Coaches as the paragraphs prove why they are not Coaches of the National Team.
91Section 9(p) of the Federation’s Constitution stipulates that it is within the power of the Federation to appoint, hire, employ, remove, replace or reinstate secretaries, managers, servants, employees, and other persons in and for the carrying out of the objects of the Federation and to pay them in return for services rendered to the Federation, salaries, wages and gratuities, as appropriate.
92. They have not issued any pay slips, tax returns or any statutory deductions made from the income of the Federation. They therefore cannot purport to claim to been employees of the Federation when they have not fulfilled their burden of proof.
93. It is a falsehood that the 1st Applicant is an employee of the 1st Interested Party and neither does he earn from the same. As established above the 2nd and 3rd have not proven their roles at all in the Federation.
94. Their case is also supported by the supplementary affidavit of James Mwangi Gikonyo and it is his case that The Affidavit of the 1st Applicant cannot be taken to represent the views of the 2nd to 11th Applicants as the alleged authorisation note marked as EOG 1 has not been adduced as it is not part of the annexures served upon me in Court. Thus the Affidavit only reflects the 1st Applicant’sviews.
96. The re-service of the pleadings is a pure afterthought and an attempt to cure the incurable defect as brought out in the 1st Respondent Preliminary Objection dated 23rd February 2024 which if allowed by thisHonorable Court will lead to a bad precedent.
Analysis and determination;
The following are the issues for determination;
1) Whether the Notice of Preliminary objection dated 23rd February 2024 has merit.
2) Whether the Applicants got a fair hearing.
3) Whether the court can conduct a merit analysis.
4) Whether the Applicants are entitled to the orders sought.
Whether the Notice of preliminary objection dated 23rd February 2024 has merit;
97. A preliminary objection must be on a point of law. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA as he then was had this to say:
“....A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.
At page 701 paragraph B-C Sir Charles Newbold, P. added the following:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion....”
I have perused the physical court file and established that indeed the verifying Affidavit was sworn on 12 February 2024 and it is signed by Edwin Gendi and the same is commissioned.
98. In judicial review cases evidence is tendered through affidavits. An affidavit that is sworn before the cause of action arises creates an impossible legal position that cannot stand. The failure to sign,to swear and to commission an affidavit is fatal.
99. In this case the decision that the applicants are seeking to challenge was granted by the Sports Tribunal on 1st February 2024.
100. The verifying Affidavit is sworn on 23.2.24 and it is properly commissioned contrary to what the respondents are alleging.
102. The preliminary objection fails. The suit is properly before this court and I so hold
Whether the Applicants got a fair hearing;
103. The applicants are raising concerns that they are not given a chance to be heard.
Article 47 (1) of the Constitution states as follows;
“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair”
Article 47(2)
“If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”
104. Article 47 has now been effectuated by the Fair Administrative Action Act, 2015 under which section 4(3) provides as follows:
(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-
(a) prior and adequate notice of the nature and reasons for the proposed administrative action;
(b) an opportunity to be heard and to make representations in that regard;
(c) notice of right to a review or internal appeal against an administrative decision, where applicable;
(d) a statement of reasons pursuant to section 6;
(e) notice of the right to legal representation, where applicable;
(f) notice of the right to cross-examine or where applicable; or
(g) information, materials, and evidence to be relied upon in making the decision or taking the administrative action.
105. The status of fair administrative action in Kenya’s constitutional and jurisprudential framework was discussed by Onguto, J in Kenya Human Rights Commission vs Non-Governmental Organizations Co-ordination Board [2016] eKLR a case in which the powers of the same Respondent were in question, in which the learned Judge expressed himself inter alia as follows:
“As to what constitutes fair administrative action, the court in President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, stated thus:
“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…” [Emphasis supplied]
Thus, a person whose interests and rights are likely to be affected by an administrative action has a reasonable expectation that they will be given a hearing before any adverse action is taken as well as reasons for the adverse administrative action as provided under Article 47 (2) of the Constitution. Generally, one expects that all the precepts of natural justices are to be observed before a decision affecting his substantive rights or interest is reached. It is however also clear that in exercising its powers to superintend bodies and tribunals with a view to ensuring that Article 47 is promoted the court is not limited to the traditional judicial review grounds. The Fair Administrative Action Act, of 2015 must be viewed in that light.
106. Article 50(1) of the Constitution makes provision for fair hearing. The Article is to the effect that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
107. The right to fair hearing is evidently closely intertwined with fair administrative action. The often cited case of Ridge vs. Baldwin [1964] AC 40 restated the right to fair hearing as a rule of universal application in the case of administrative acts or decisions affecting rights . In his speech to the House of Lords in 1911, Lord Loreburn aptly put is as a ‘duty lying upon everyone who decides anything’ that may adversely affect legal rights.
Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639 on the right to be heard states that:
“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals, and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”
108. I would state that it now appears that the court, effectively has a duty to look into not only the merits and legality of the decision made due to the requirement of “reasonable” action under Article 47, but also the process and procedure adopted due to the requirement of following all precepts of natural justice under both Articles 47 and 50 (1) of the Constitution. The court proceeding under Article 47 of the Constitution is expected not only to pore over the process but also ensure that in substance there is justice to the petitioner. The traditional common law principles of judicial review are, in other words, not the only decisive factor.
109. It may sound like stretching the precincts of traditional judicial review, but clearly by the Constitution providing for a “reasonable” administrative action and also enjoining decision makers to provide reasons, the constitutional scheme was to entrench the blazing trend where courts were already going into merits of decisions by innovatively applying such principles like proportionality and legitimate expectation. I must however confess that the line appears pretty thin and, perhaps, more discourse is required on the subject of traditional judicial review and the now entrenched substantive constitutional judicial review.”
111. The twin rules of natural Justice that no man shall be a Judge in his own cause (Nemo Judex in causa sua) and that no man shall be condemned unheard (audi alteram partem) are cardinal principles of law which are fundamental in our Justice system. They are basically an embodiment of the duty to act fairly. However, there is no legal definition or standard regarding what constitutes procedural fairness and each case must be decided on its own merits.
112. In the instant case and from the sports tribunal's proceedings and decision, I am satisfied that the Applicants were given the right to fail the hearing and I so hold.
Whether the court is entitled to the orders sought;
113. The Applicants case raises issuess and questions that cannot be resolved by this court without a merit analysis.The Responses have tendered substive evidence.The veracity or otherwise of the rival arguments herein are such that the court is being invited into the realm of what can only happen at viva voce hearing sessions where chief,cross and re examination is conducted within the framework of The Evidence Act before the court arrives at a judgment..
115. In arriving at that conclusion,this court is guided by the finding of the Supreme Court in the case of Edwin Dande vs the IG where the court held Supreme Court in Petition No. 6(E007) of 2022 Edwin Dande & Others v The Inspector General, National Police Service & Others where it was held…
(b) Judicial review was entrenched in the Constitution of 2010 to a substantive and justiciable right under Article 47 [see paragraph 78-page 301. The court concluded in paragraph 85 [see page 33]and held as follows:
'It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action is taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.
115. This court cannot delve into the Sports Tribunal’s realm of decision-making powers since this court does not see any illegality or procedural impropriety and I so hold.
116. The Sports Tribunal presiding officer exercised its discretion in arriving at the impugned decision. If dissatisfied with the decision, then the Applicants ought to have lodged an Appeal.
117. This court is aligned to the fact that the scope of judicial review has now expanded beyond the common law principles and the Law Reform Act and Order 53 of the Civil Procedure Rules but it has now been entrenched under Article 23 of the Constitution as well as the Fair Administrative Actions Act.
118. A party who invites the court to determine whether or not a right has been violated and or been infringed in the hearing by a Tribunal has to go beyond the mere mention of the articles of the Constitution or the Sections of the Law they are relying on.
119. In order to invoke the judicial review powers to do a substantive or a merit analysis of its case, the Applicant must demonstrate how their right was threatened or violated with precision so as to enable the Respondents to counter the allegation within Article 24 of the Constitution of Kenya.
120. Just like in other cases, the burden of proof rests on he who alleges that there is a violation within the standards of the constitutional rights litigation within Section 107 of The Evidence Act.
121. The litigant must articulate and canvass its case in such a manner that will allow the court to determine the violation question with a view to arriving at an informed decision that the litigant has suffered harm, prejudice, or damage.
122. An Applicant who is inviting or expecting the court to carry out a merit analysis must drive the court towards granting relief by way of compensation within Section 11 of the Fair Administrative Action Act. The merit analysis must not be done in vain.
123. The applicants must demonstrate through evidence that the Respondents violated the concerned rights or that the Tribunal hearing process offended the law.
124. I find that the ex parte applicants have not fulfilled nor met the foregoing minimum standards that would call for a merit analysis and I so hold.
125. The Fair Administrative Action Act looks at the failure to adhere to and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision and not the merits of the case.
126. The judicial review focuses on finding out whether the impugned decision or act complained of is tainted with illegality, irrationality and procedural impropriety.
127. In order to persuade the court to go beyond this scope, a litigant has to satisfy the court that its case falls within the exceptions as enunciated in The Edwin Dande Case. The Applicants have not satisfied the court that they qualify as such.
128. For instances,in order to satisfy itself whether or not The 1st and 2nd Applicants were contracted to organize and train the Kenya Karate Athletes for the 13th African Games,the parties have to tender documents and tender evidence including the said contract for the court to analyse.
130. The court cannot analyse the evidence that would go into proving who gave them the instructions to do so.This calls for witnesses to testify then the court has to carry out a merit analysis which it lacks capacity to do.
131. According to the Respondents,The 1st, 2nd and 3rd Applicants are ordinary Karate members who cannot purport to appoint themselves as theTechnical Committee or the Technical Directorate or Organising Committee without following due process under the KKF Constitution under Section 39(k) and Section 45(iv)and upon approval by Council Meeting. This court lacks the jurisdiction to engage in the evidential journey and merit analysis that would determine the veracity of such an issue.
Are the Applicants entitled to the orders sought;
132. In order to qualify for orders of judicial review of applicants must, satisfy the principles set out in the Muntu to case.
In the case of Francis Bahikirwe Muntu and others v Kyambogo University, High Court, Kampala,Miscellaneous Application Number 643 of 2005 (UR), it was decided that:
Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of thecomplaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…..
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. (Al-Mehdawi v Secretary of State for the Home Department[1990] AC 876).”
134. It is incumbent upon the applicants to satisfy the court their case meets the principles for the grant of judicial review orders.
In the case of Daniel Kaminja & 3 others (Suing as Westland Environmental Caretaker Group) v County Government of Nairobi [2019] eKLR “A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law.
135. Thereby the matter has been deprived of practical significance or rendered purely academic.
136. Mootness arises when there is no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact.
137. It is trite that as a general principle, the rights and liabilities of parties to any judicial proceedings pending before court are determined in accordance with the law as it was at the time when the suit was instituted and by applying the facts to the law and circumstances.
138. Time and again, it has been expressed that a court should not act in vain. No court of law will knowingly act in vain.
139.The general attitude of courts of law is that they they frawn when making pronouncements on academic or hypothetical issues as it does not serve any useful purpose.
140. A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour.
141. A suit is academic if it is not related to practical situations of human nature and humanity.
142. A case or issue is considered moot and academic when it ceases to present a justiciable controversy by virtue of supervening events, so that an adjudication of the case or a declaration on the issue would be of no practical value or use.
143. In such instance, there is no actual substantial relief which a petitioner or applicant would be entitled to, and which would be negated by the dismissal of the case.
143. Courts generally decline jurisdiction over such cases or dismiss them on grounds of mootness, save when, among others, a compelling constitutional issue raised requires the formulation of controlling principles to guide the bench, the bar and the public; or when the case is capable of repetition yet evading judicial review.
144. The legal doctrine known as 'mootness' is well-developed in constitutional law jurisprudence. Accordingly, a case is a moot one if it “...seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has actually been asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon a then existing controversy.”
145. Furthermore, a case will be moot “…if the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court for some other reason cannot operate to grant any actual relief, and the court is without power to grant a decision.”
146. I do not think the instant case is moot. Far from that. The Applicants are entitled to the determination of this suit.This accords with the right to Fair hearing under Article 50 of the Constitution.
147. In closing, it is my finding that the applicants do not meet the threshold for the grant of judicial review orders and I so hold.
Disposition;
148.The Notice of Preliminary objection 23rd February 2024 is dismissed.
149. The applicants have not demonstrated any illegality irregularity or any procedure impropriety on the part of the Respondents.
Order;
The Application dated 12th February 2024 is dismissed with costs.