The applicant’s application is a motion dated 4 February 2021 brought under Order 53 Rule 3(1) of the Civil Procedure Rules and Section 8(2) of the Law Reform Act Cap 26. It seeks in the main orders for certiorari and prohibition and whose prayers have respectively been framed as follows:
“1. An order of certiorari removing to this Honourable Court for the purposes of being quashed the proceedings of the Chief Magistrate’s Court at Nairobi Milimani Commercial Courts in Commercial Civil Case No. E969 of 2020 Top Choice Surveillance Limited versus County Government of Kirinyaga, Solitaire Construction Limited and Electroserve Limited.
2. An order of prohibition to prohibit and restrain the respondent from hearing, proceeding with and or taking any further steps in Commercial Civil Case No. E9 69 of 2020 Top Choice Surveillance Limited versus County Government of Kirinyaga, Solitaire Construction Limited and Electroserve Limited.”
The application is based on a statutory statement dated 25 January 2021 and an affidavit sworn on even date by the applicant’s director, Josphat Kimani Wanjiku.
According to the applicant, there is pending in the magistrate’s court Civil Case No. E9 69 of 2020 Top Choice Surveillance Limited versus County Government of Kirinyaga, Solitaire Construction Limited and Electroserve Limited. The case is at Milimani Chief Magistrates Court, in Nairobi.
The case was filed by the 1st interested party as a result of procurement proceedings that resulted in the award of a tender described as “Tender Negotiation No. 761726-2019-2020 4 Nominated subcontract tender for Supply, Installation Testing and Commissioning of CCTV and Access Control System at the proposed Medical Complex at Kerugoya Level 5 Hospital.”
Both the applicant and the interested party submitted their tenders. The applicant submitted a request for review in application no. 45 of 2020 before the Public Procurement Administrative Review Board. A decision on this request for review was rendered on 14 April 2020 in favour of the applicant.
The interested party, apparently in a bid to challenge the decision of the Public Procurement Administrative Review Board sought leave in this Honourable Court in Judicial Review Miscellaneous Application No. E001 of 2020.
In the circumstances, it is the applicant’s case that the proceedings in the magistrate’s court over the same procurement proceedings that are subject to judicial review proceedings in this Honourable Court cannot be entertained. In any event, the applicant has urged, the proceedings are contrary to sections 167(2) and 175 (1) of the Public Procurement and Asset Disposal Act.
Accordingly, it has been urged that those proceedings are tainted with illegality.
It has also been sworn on behalf of the applicant that the award of the tender to the 1st interested party was recalled therefore any contract between the procuring entity and the 1st interested party is illegal.
The 1st interested party opposed the motion while the 2nd interested party supported it. None of the respondents filed a response to the application.
In an affidavit sworn on behalf of the 1st interested party, it is stated that on 26 January, 2021 the applicant in this application sought to have its name removed from the magistrate’s court Civil Case No. E969 of 2020 Top Choice Surveillance Limited versus County Government of Kirinyaga, Solitaire Construction Limited and Electroserve Limited. The application was granted on 29 January 2021 by consent of all the parties in that suit.
By the time the order was granted, the applicant did not disclose to court or to any of the rest of the party’s in the magistrate’s court case that the present proceedings had been filed in this Honourable Court. It is the 1st interested party’s position that considering the circumstances under which this application has been filed, it is an abuse of the process of court.
I have considered the submissions filed by the applicant and interested parties in support of the positions they have adopted in this application.
Amongst the documents I have had to consider in reaching a determination in this matter is the affidavit sworn to verify the facts relied upon. In, particular, my attention has been drawn to paragraphs 16 and 17 of the affidavit in which the applicant has sworn as follows:
“16. That I know of my own knowledge that the applicant herein had raised a notice of preliminary objection on point of law before the subordinate court in question but which is still bent to proceed with the hearing of the case hence the instant application.
17. That I verily believe that the proceedings before the subordinate court are scandalous, frivolous and vexatious especially on account of previous litigation over the same subject matter well (sic) to the knowledge of parties.”
The notice of preliminary objection was apparently raised in the impugned suit in the Chief Magistrates Court at Milimani Commercial Courts.
If the applicant has raised a preliminary question in the magistrates’ court questioning the jurisdiction of the court to determine a suit before it on the ground that certain provisions of the Public Procurement and Asset Disposal Act, 2015 have been infringed, there is no justification for the applicant to institute a suit in this Honourable Court effectively raising the same issues that are bound to be addressed at the hearing of the preliminary objection before the magistrates’ court.
I also note that apart from the allegation that the magistrates court was bent on proceeding with the hearing of the matter before it in spite of an objection against the suit, the applicant did not provide any further information on the fate of the objection. I have, however, gathered from the 2nd interested party’s submissions that the objection was dismissed and it is after the dismissal that the applicant filed this application.
If the position is as put by the 2nd interested party, the appropriate course would have been for the applicant to appeal against the magistrates ruling on the preliminary objection rather than move this Honourable Court for judicial review orders.
The Civil Procedure Act, cap. 21 provides for appeals to this Honourable Court against decrees and orders made by the subordinate courts. Section 65 of the Civil Procedure Act states that an appeal from the subordinate court shall lie to this Honourable Court; it states as follows:
65. Appeal from other courts
(1) Except where otherwise expressly provided by this Act, and subject to such
provision as to the furnishing of security as may be prescribed, an appeal shall lie
to the High Court—
(a) deleted
(b) from any original decree or part of a decree of a subordinate court, other than a magistrate’s court of the third class, on a question of law or fact; (c) from a decree or part of a decree of a Kadhi’s Court, and on such an appeal the Chief Kadhi or two other Kadhis shall sit as assessor or assessors.
And as far as appeals from orders are concerned, section 75 of the same Act prescribes circumstances when an appeal will lie as of right and when leave has to be sought to file such appeal either from the court which made the order or from the court in which the appeal lies. The section reads as follows:
75. Orders from which appeal lies
(1) An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted—
The rule goes further to list those orders against which an appeal will lie as a matter of course or right.
Order 43 of the Civil Procedure Rules also prescribes the orders that may be appealed against as a matter of right; it states as follows:
1. (1) An appeal shall lie as of right from the following Orders and rules under the provisions of section 75 (1) (h) of the Act—
It is apparent that the Civil Procedure Act and the rules made thereunder make provision for appeals against any order or decree made by the magistrates’ court. Any party aggrieved by an order or decree of the subordinate court may appeal either as a matter of right or he may still seek leave to appeal in instances where the avenue of appeal is not given as of right. That said, it has been held that the availability to the applicant of another remedy which is equally convenient, beneficial and effective is a relevant factor in exercising the discretion whether or not to grant judicial review remedies.
A few English decisions on this point are quite apt.
In R vs Inland Revenue Commissioners, ex parts Preston (1985) AC 835 Lord Scarman said at page 852D-F as follows:
“A remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision.”
In the same case Lord Templeman said as follows on the same point:
“Judicial review should not be granted where an alternative remedy is available... Judicial review process should not be allowed to supplant the normal statutory appeal procedure.” (see page 862 D&F).
And in R vs Panel on Take-overs and Mergers, ex parts Guinness Plc (1990) 1QB 146, 177-178 Donaldson MR said as follows:
“It is not the practice of the court to entertain an application for judicial review unless and until all avenues of appeal have been exhausted, at least insofar as the alleged cause of complaint could thereby be remedied... it is not for the court to usurp the functions of the appellate body.”
Lord Widgery CJ had this to say in R versus Peterkin, ex p Soni (1972) Imm AR 253 on this issue:
Where Parliament has provided a form of appeal which is equally convenient in the sense that the appellate tribunal can deal with the injustice of which the applicant complains this court should in my judgement as a rule allow the appellate machinery to take its course. The prerogative orders form the general residual jurisdiction of this court whereby the court supervises the work of inferior tribunals and seeks to correct injustice were no other adequate remedy exists, but both authority and common sense seem to me to demand that the court should not allow its jurisdiction under the prerogative orders to be used merely as an alternative form of appeal when other and adequate jurisdiction exists elsewhere.
I am minded that most of the appeals referred in the foregoing decisions are appeals to appellate tribunals and not courts, but the principle is the same; that if an appellate procedure has been provided by statute, whether to tribunals or to courts, the appellate procedure should take precedence. Judicial review, as it were, is a residual jurisdiction.
The point was captured by David Foulkes in his book Foulkes Administrative Law, 7th Edition. Citing the case of Customs and Excise Commissioners versus J.H. Corbitt (Numismatists) Ltd (1981) AC 22, (1980) 2 2ALL ER 72, the learned author noted as follows:
“It is to be noted that an appeal lies from, whether to an appellate tribunal or to a court of law, only when and to the extent that statute so provides, and the powers of the appeal body to review, reconsider etc. the decision of the tribunal likewise depend on the statute.
To be contrasted with appeal is judicial review. The decision of tribunals, as bodies exercising judicial functions, have always been subject to review by the courts (that is, to judicial review) by means of the order of certiorari. This enables the court to quash a decision on certain grounds. Whereas appeal lies only when and to the extent that statute provides, the court’s common law power of judicial review exists unless it is taken away or limited by statute. Thus where no appeal to the court is provided by statute the only possible challenge in the courts is by way of judicial review…” (at p.150-151).
And no doubt this was the principle applied by Lord Wright in General Medical Council versus Spackman (1943) AC627, at 640 where he stated as follows:
“I have observed that Parliament has not provided for any appeal from the decisions of the council. The only control of the court to which the council is subject (apart from proceedings by way of mandamus) is the power which the court may exercise by way of certiorari. Certiorari is not an appellate power.”
So, where an appellate procedure has been provided by statute either to an appellate tribunal or to the court, an applicant cannot seek to invoke the court’s jurisdiction of judicial review. He is bound to adopt the procedure provided by statute.
For the reasons I have given, I find the application before court misconceived and an abuse of the due process of the court. It is hereby dismissed with costs. It is so ordered.
Dated, signed and emailed to parties on 2 January 2023