1. Before this court for determination are two Applications. The first Application is a Notice of Motion dated 14th March, 2024 [hereinafter referred to as “the Substantive Application”]. The second Application is a Notice of Motion dated 23rd April, 2024 [hereinafter referred to as “the Application”]. The Application was filed during the pendency of the Substantive Application and the court directed that the two Applications be heard together.
The Application Dated 23rd April, 2024
2. For good order, I shall first deal with the Application dated 23rd April, 2024 said to be brought under the inherent powers of this Court, Section 1A and 3A of the Civil Procedure Act. The Application was filed by the Interested Party seeking for the following orders inter alia: that the ex-parte orders made on 7th March, 2024 granting leave to the ex-parte Applicant to file Substantive Application be set aside; in the alternative, that the leave so granted to operate as stay of proceedings before the Children’s Court be set aside; and for orders as to cost.
3. The Application was based on the grounds on the face of it, and the grounds on the Supporting Affidavit of Frankline Lateo, evenly dated. It was averred that the ex-parte Applicant failed to make full disclosure of material fact in obtaining the orders of 7th March, 2024; which material facts would have dissuaded the court from making the stated orders.
4. It is also averred that there is gross misconception of the court direction as the ex-parte Applicant has chosen to misinterpret the gist of the entire Judicial Review. That since after the stay of proceeding orders were issued on 7th March, 2024; the ex-parte Applicant has taken the children from school and from the Interested Party who had custody, on allegations that this court had authorized the same. Thus, that the ex-parte Applicant is violating the rights of the Interested Party who had custody of the children, and is likely to suffer which will render the Application nugatory.
5. The jurisdiction of this court to set aside the order of stay is admitted and that it applies where there has been non-disclosure of material facts, abuse of the court process, or it is in the public interest to set aside orders. To that end, the Interested Party seeks for this court to set aside the ex-parte orders.
6. In response, and opposing the Application, the ex-parte Applicant filed a Replying Affidavit dated 3rd June, 2024 and deponed by Jacinta Muthoni Mwangi. It is contended that the lawful custody of the children rests with her under the Parental Responsibility Agreement dated 4th May, 2023.
7. That parties, including third parties, should be ordered to comply with the Parental Responsibility Agreement. To that end, the ex-parte Applicant asked this court to dismiss the Interested Party’s Application, and make orders as to the Parental Responsibility Agreement.
8. I have considered the materials before this court and find the issue for determination is: Whether this Application has met the threshold to grant setting aside orders
9. In Judicial Review proceedings, the grant of an order of stay is premised on Order 53 rule 1(4) of the Civil Procedure Rules, the provision states; “Order 53 rule 1(4); The grant of leave under this rule to apply for an order of Prohibition or an order of Certiorari shall, if the Judge so directs, operate as a stay of the proceedings in question until the determination of the application or until the Judge orders otherwise.”
10. A plain reading of Order 53 rule 1(4) clearly shows that the Court has powers to make orders of stay and such orders can subsist until the determination of the application or until when the Judge orders otherwise. To my understanding, circumstances may change or new facts may come to the fore that would necessitate the varying, setting aside or discharge of stay orders earlier granted.
11. On the issue of jurisdiction to review its own orders in judicial review, it is trite Law that the Court’s role is to do justice to the parties before it. The Court has inherent powers to meet the ends of justice and in my view such powers are available for deployment in judicial review proceedings. The Court should in exercising such inherent powers be in a position to remedy any injustice that may be occasioned by the Court’s orders at the ex parte stage in judicial review proceedings.
12. To buttress this argument, I refer to the decision of the Court of Appeal in M. Mwenesi v Shirley Luchhurst & Another Civil Application No.170 of 2000 where the court held;
“A court of justice has no jurisdiction to do injustice and where injustice on a party to a judicial proceeding is apparent a court of law is under a duty to exercise its inherent power to prevent injustice.”
13. The decision in the M. Mwenesi case above echoes the sentiments of Lord Diplock In Bremier Schiff bar and Maschinen Fabrick vs. South Indian Shipping Corporation Ltd [1981] where the Judge stated;
“It would dampen the constitutional role of a court if as a court of Justice it were not armed with power to prevent its process being misused, in such a way as to diminish its capacity to arrive at a just decision of a dispute.”
14. Therefore, this court has powers to vary, set aside or discharge orders issued in judicial review proceedings, where it is deemed fit.
15. In varying, setting aside or discharging orders issued in judicial review proceedings, The Court of Appeal in Civil Appeal No.77 of 2003, Judicial Commission of Inquiry to the Goldenberg Affair vs. Job Kilach referring to the case of Ex parte Harbage quoted from Page 14 thereof as follows;
“The next point to make is that although appeal does lie to this court against an ex-parte order made by a judge of High Court… nevertheless in his judgment in that case Sir Donalds on MR [1983] 3 All E.R. 589 at page 593 said:
“I have said ex-parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the Applicant is under duty to make full disclosure of all relevant information in his possession whether or not it assists his application this is no basis for making a definite order and every judge knows this. He expects at a later stage to be given opportunity to review his provisional order in the light of evidence and argument adduced by the other side and in so doing he is not hearing an appeal from himself and in no way feels inhibited from discharging or varying his original order. This being the case it is difficult if not impossible to think of circumstances in which it would be proper to appeal to this court against an ex parte order without just giving the High Court judge an opportunity of reviewing it in light of argument from the defendant and reaching a decision.”
16. I entirely agree with the sentiments of H. Omondi J in Republic v Vice Chancellor Moi University & 3 others Ex-Parte Benjamin J. Gikenyi Magare [2018] eKLR where in an application to vacate stay orders in a judicial review application she stated;
“To request the court to re-look at the background leading to the issuance of stay, is in my view not asking the court to sit on appeal on orders of a court of equal status. It is simply telling the court to reconsider the orders issued in light of the fact that the beneficiary of those orders concealed or did not disclose all the material facts prevailing. All the other issues raised will be better addressed at the hearing of the main motion.”
17. Judicial precedent in our jurisdiction has crystallized grounds for varying and/or setting aside leave to apply for judicial review or other orders to include material non-disclosure, concealment of material facts or documents, misrepresentation and where the application is an abuse of Court process. The Court in In the matter of an Application by Justus Nyangaya & Others, Nairobi Misc. Civil Case No.1133 of 2002 observed;
“However the courts have set aside ex parte orders obtained in judicial review proceedings following non-disclosure of material facts, concealment of material documents and on misrepresentation.”
18. In the case of Consumer Federation of Kenya (COFEK) and Others v Attorney General and Others Nairobi JR Misc. Appl. 185 of 2011 (Unreported), Warsame J (as he then was) stated;
“It is also important to restate that, in judicial review matter, court must resist being rigidly chained to the past situation and strict compliance with the procedure. A court of justice must intervene to stop acts in contravention of good governance and accountability in the field of administrative action.”
19. In the present matter, the Interested Party has argued that the ex-parte is guilty of non-disclosure of material facts. However, the non-disclosure has not been explained as to what the material facts are. The parties have made arguments about the custody of the children and about a Parental Responsibility Agreement.
20. To my mind, the issues as to the Parental Responsibility Agreement and the custody of the children cannot be determined on this forum. Judicial Review matters are in regard to procedure, save for where constitutional violations are alleged then the case can be reviewed on its on merit. In supporting my position, I make reference to the Supreme court of Kenya case of Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment).
21. Having found no evidence of non-disclosure of material facts, concealment of material documents, and on misrepresentation; It is my finding and I hold that the Interested Party’s Application dated 23rd April 2024 is devoid of merit and the same is dismissed. Cost shall be in the cause.
22. I shall now deal with the second Application.
The Substantive Application Dated 14th March, 2024
23. Pursuant to leave of court granted on 7th March, 2024, the ex-parte Applicant filed the Substantive Application a Notice of Motion dated 14th March, 2024. The substantive Application is said to be brought under Order 53, Rule 3 of the Civil Procedure Rules 2010. The substantive Application seeks for the following orders:
i. THAT this Honourable court be pleased to grant an Order of CERTIORARI to remove into this Honourable court for the purposes of quashing the entire proceedings taken before the Respondent, Honourable Charity C. Oluoch, CM in the Children Case no. E1746 of 2023 (hereinafter referred to as “the proceedings”).
ii. THAT this Honourable court be pleased to grant an Order of MANDAMUS compelling the Respondent to enforce the terms of the Parental Responsibility Agreement dated 4th April (sic) 2023.
iii. THAT the costs of this application be provided for.
24. The substantive Application is based on the grounds set out on its face, and on the Statutory Statement dated 1st March, 2024. The ex-parte Applicant also filed a Supporting Affidavit evenly dated; and a Verifying Affidavit dated 29th February, 2024 – both sworn by Jacinta Muthoni Mwangi. The ex-parte Applicant’s case is that the proceedings in the Magistrate’s Children Court are per incuriam - has failed to pay attention to relevant statutory provision or precedents.
25. That despite bringing to the Magistrates Children Court’s attention of an existing and subsisting Parental Responsibility Agreement dated 4th May, 2023; the Respondent in conducting the lower court proceedings did not acknowledge the agreement as being in force and legally binding pursuant to Section 33(3) of the Children’s Act, 2022. That the Respondent acted arbitrarily and in utter contravention of the rules of natural justice and in breach statute.
26. As per the ex-parte Applicant, the Respondent lacks powers to conduct the children custody proceedings without regard to the Parental Responsibility Agreement, as the agreement has not yet been set aside. To that end, that the Substantive Application ought to be allowed.
27. The Application is opposed.
28. The Respondent, through the Chief Registrar of the Judiciary, filed their Grounds of Oppositions dated 11th June, 2024 on the following grounds:
(a) A judicial decision, order or proceedings of a court of law are not administrative or quasi-judicial decisions or proceedings that would be amenable to challenge via judicial review proceedings.
(b) A party who is dissatisfied with the judicial decision, order or proceedings of a court of law can only challenge that decision, order or proceedings by way of an application for review before the same court, or appeal to a higher court naming the other party as respondent, and not by way of Judicial Review proceedings naming the court and the presiding Judicial Officer as respondents.
(c) Naming the court and the presiding Judicial Officer as Respondents in judicial review proceedings invites the court and the judicial officer to enter appearance and defend their decision or order before another court in a manner that is incompatible with our adversarial and hierarchical judicial system where disputes are between the parties who come to court, and the errors of one court can be corrected by the same court through review, or by a higher court on appeal.
(d) There exists a statutory right of appeal against the proceedings and decision of the Respondent and the grounds raised by the Ex Parte Applicant can be raised and addressed by way of that appeal.
(e) There are no exceptional circumstances warranting this court to exercise its Judicial Review jurisdiction when the Ex Parte Applicant has the option to lodge an appeal.
(f) The suit offends the doctrine of judicial immunity of the presiding Magistrate who enjoys immunity from being sued over actions done in good faith in discharge of judicial functions.
29. To buttress their cases, the respective party’s filed their written submissions. The ex-parte Applicant’s submissions in support are undated; while the Respondent’s submissions in opposition are dated 11th June, 2024; and the Interested Party’s submissions in opposition are dated 28th June, 2024.
30. In the main, the ex-parte Applicant submitted that the Respondent was obligated to pay regard to the Parental Responsibility Agreement in the Magistrate’s court proceedings. That the entire proceedings in the lower court, presided over by the Respondent, have been conducted in direct violation of Sections 33, 34, and 35 of the Children Act.
31. On Judicial Review being the appropriate relief, it was argued in the affirmative. It is posited that judicial review proceedings are taken against administrative decisions of judicial and quasi-judicial officers. Relied on Article 22, 23, and 47 of the Constitution, Section 2 of the Fair Administrative Action Act; and the cases of Republic v. Chief Justice of Kenya & and Others Ex-Parte Moijo Mataiya Ole Keiwua (2010) eKLR; and the Supreme Court's decision in Hon. Justice Said Chitembwe v. the Tribunal Appointed to Investigate into the Conduct of Hon. Justice Said Juma Chitembwe, Petition No. E001 of 2023.
32. As per the ex-parte Applicant, the key issue in this judicial review is whether the decision was "lawful or unlawful," whereas the issue in an appeal is whether the decision was "right or wrong." Differently put, that Judicial Review focuses on the decision-making process rather than the decision itself. Reliance was place in Republic v Chief Magistrate’s Court at Milimani Law Courts; Director of Public prosecutions & 2 others; Ex parte Applicant: Pavin Galot [2020] eKLR; RGIS Kenya Limited vs Kenya Power and Lighting Company and Public Procurement Administrative Review Board HCJR/E040/2024; Anisminic Ltd v Foreign Compensation Commission [1968] APP.L.R. 12/17.
33. Further, the ex-parte Applicant posited that the instant Application for setting aside the leave granted in merited. That the purpose of granting a stay in judicial review proceedings is to suspend the challenged proceedings pending the resolution of the judicial review. Republic v. National Assembly & Another, ex parte Coalition for Reform and Democracy (CORD) [2016] eKLR case was relied upon.
34. It was maintained that the ex-parte Applicant has demonstrated the proceedings in the Magistrate’s court are in direct contravention of Section 33 of the Children Act; and Respondent's actions were procedurally flawed and substantively unjust for disregard of the Parental Responsibility Agreement. Thus, that the Respondent misapplication of the law necessitate this Court's intervention, and warrants the orders sought.
35. Conversely, in opposing the Application, the Respondent posited that in this judicial proceedings against the Judicial officer is in contravention of principle of judicial immunity under Article 160 (5) of the Constitution, Section 45 of the Judicial Service Act, and Section 8 of the Judicature Act. Relied on the Supreme Court’s case of Bellevue Development Company v. Francis Gikonyo & 3 Others, SC Pt No. 42 of 2018; [2020] eKLR.
36. That when an alleged error arises from judicial proceedings, or where proceedings or decisions are already judicial as in this case, the only options for correcting that error are through an application for review or an appeal to a higher court, and not by way of Judicial Review proceedings. Relied on Nairobi Judicial Review Misc. Civil Application No. 99 OF 2019 Republic v RO Mbogo & another; Alfred Ndemo Nyakundi (Interested Party) Ex parte Diana Mutheu & another [2020] eKLR; Republic v Chief Magistrate, Mombasa & 3 others; Sega Ventures Limited & another (Interested Parties); Kirima (Ex parte) (Judicial Review Application 1 of 2022) [2023] KEELC 180 (KLR); and National Social Security Fund v Sokomania Ltd & Chief Magistrate’s Court Milimani [2021] eKLR cases.
37. The Respondent averred that the grievances now presented by the Ex Parte Applicant can adequately be addressed by way of appeal against the decision of the Respondent once the proceedings are concluded and a decision is rendered.
38. That if these proceedings are not struck out, the Magistrate who made the impugned decision – having been named as the Respondent - may be required to swear an Affidavit explaining the soundness of her judicial proceedings, and may be compelled to pay costs. This is not only unprecedented but is also completely at odds with our adversarial judicial system. In the end, it is maintained that this Applicant against the Respondent is fatally defective and ought to be dismissed with cost.
39. In further opposition to the Application, the Interested Party in their submissions reiterated their case regarding the Parental Responsibility Agreement. Additionally, they posited similarly on the immunity of Judicial officers and cited Article 160(5) of the Constitution, and Section 6 of the Judicature Act; and on the difference between appeals and judicial review. It was maintained that the grievances of the ex-parte ought to have been addressed in an appeal and not a judicial review case – against the judicial officer who presided the lower court matter. That the present Application is rife for dismissal with cost.
Analysis and Determination
40. I have carefully considered the Application, responses, and the annexures thereto. I have also paid due regard to the submissions by the learned counsel for each party. The issue that arises for determination is: Whether the Substantive Application is merited to grant the orders sought.
41. The Court of Appeal has held in the Speaker of the National Assembly v. Karume, Civil Application No. NAI 92 OF 1992 that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
42. Therefore, before requesting judicial review remedies in court, an aggrieved party should consider other remedies, such as appeal procedures, provided for under the statute and in precedent. When evaluating whether a public entity has misused its authority, the reviewing courts will always be mindful that they should not misuse their own authority by hearing cases that they otherwise shouldn't have considered.
43. Nevertheless, the question that then begs is: whether an applicant can invoke the judicial review jurisdiction of this Honourable Court instead of filing an appeal. It is clear from the above provision that it is an appeal rather than an application for judicial review that ought to be filed against decisions of the lower court’s decision.
44. An appeal is not the same as judicial review. Appellate jurisdiction allows the appellate court to substitute its own decision, unlike judicial review, which focuses on the process rather than the decision's merits. It is not part of the purpose for judicial review to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question (see Lord Hailsham in Chief Constable of the North Wales Police versus Evans (1982) 1 WLR 1155 at 1160F).
45. It has also been held in R versus Entry Clearance Officer, Bombay ex p Amin (1983) 818 at 829 (B-C) (per Lord Fraser) that judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing an administrative decision without substituting its own decision, and it is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer.
46. Similarly, in the case Chief Constable of North Wales Police versus Evans (supra) Lord Brightman said at page 1173F and 1174G that:
“Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power…Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”
47. Lord Hailsham stated in the same case that:
“The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court.” (At page 1161A).
48. On his part Lord Roskill said in R versus Inland Revenue Commissioners ex-parte National Federation of Self-Employed and Small Businesses Ltd 1982(AC) 617 at 633C that:
“The court must not cross that boundary between administration whether good or bad which is lawful and what is unlawful performance of a statutory duty”.
49. Essentially, even if the applicant were to convince the court that there are exceptional reasons justifying immediate recourse to court before exhausting other remedies under the law, and that it would serve justice to grant this exemption, the procedure he seeks to use for addressing his grievances is not permissible.
50. On that premise, I find and hold that the ex-parte Applicant’s Notice of Motion dated 14th March, 2024 lacks merit and the same is dismissed with cost.
The Application Dated 23rd April, 2024
2. For good order, I shall first deal with the Application dated 23rd April, 2024 said to be brought under the inherent powers of this Court, Section 1A and 3A of the Civil Procedure Act. The Application was filed by the Interested Party seeking for the following orders inter alia: that the ex-parte orders made on 7th March, 2024 granting leave to the ex-parte Applicant to file Substantive Application be set aside; in the alternative, that the leave so granted to operate as stay of proceedings before the Children’s Court be set aside; and for orders as to cost.
3. The Application was based on the grounds on the face of it, and the grounds on the Supporting Affidavit of Frankline Lateo, evenly dated. It was averred that the ex-parte Applicant failed to make full disclosure of material fact in obtaining the orders of 7th March, 2024; which material facts would have dissuaded the court from making the stated orders.
4. It is also averred that there is gross misconception of the court direction as the ex-parte Applicant has chosen to misinterpret the gist of the entire Judicial Review. That since after the stay of proceeding orders were issued on 7th March, 2024; the ex-parte Applicant has taken the children from school and from the Interested Party who had custody, on allegations that this court had authorized the same. Thus, that the ex-parte Applicant is violating the rights of the Interested Party who had custody of the children, and is likely to suffer which will render the Application nugatory.
5. The jurisdiction of this court to set aside the order of stay is admitted and that it applies where there has been non-disclosure of material facts, abuse of the court process, or it is in the public interest to set aside orders. To that end, the Interested Party seeks for this court to set aside the ex-parte orders.
6. In response, and opposing the Application, the ex-parte Applicant filed a Replying Affidavit dated 3rd June, 2024 and deponed by Jacinta Muthoni Mwangi. It is contended that the lawful custody of the children rests with her under the Parental Responsibility Agreement dated 4th May, 2023.
7. That parties, including third parties, should be ordered to comply with the Parental Responsibility Agreement. To that end, the ex-parte Applicant asked this court to dismiss the Interested Party’s Application, and make orders as to the Parental Responsibility Agreement.
8. I have considered the materials before this court and find the issue for determination is: Whether this Application has met the threshold to grant setting aside orders
9. In Judicial Review proceedings, the grant of an order of stay is premised on Order 53 rule 1(4) of the Civil Procedure Rules, the provision states; “Order 53 rule 1(4); The grant of leave under this rule to apply for an order of Prohibition or an order of Certiorari shall, if the Judge so directs, operate as a stay of the proceedings in question until the determination of the application or until the Judge orders otherwise.”
10. A plain reading of Order 53 rule 1(4) clearly shows that the Court has powers to make orders of stay and such orders can subsist until the determination of the application or until when the Judge orders otherwise. To my understanding, circumstances may change or new facts may come to the fore that would necessitate the varying, setting aside or discharge of stay orders earlier granted.
11. On the issue of jurisdiction to review its own orders in judicial review, it is trite Law that the Court’s role is to do justice to the parties before it. The Court has inherent powers to meet the ends of justice and in my view such powers are available for deployment in judicial review proceedings. The Court should in exercising such inherent powers be in a position to remedy any injustice that may be occasioned by the Court’s orders at the ex parte stage in judicial review proceedings.
12. To buttress this argument, I refer to the decision of the Court of Appeal in M. Mwenesi v Shirley Luchhurst & Another Civil Application No.170 of 2000 where the court held;
“A court of justice has no jurisdiction to do injustice and where injustice on a party to a judicial proceeding is apparent a court of law is under a duty to exercise its inherent power to prevent injustice.”
13. The decision in the M. Mwenesi case above echoes the sentiments of Lord Diplock In Bremier Schiff bar and Maschinen Fabrick vs. South Indian Shipping Corporation Ltd [1981] where the Judge stated;
“It would dampen the constitutional role of a court if as a court of Justice it were not armed with power to prevent its process being misused, in such a way as to diminish its capacity to arrive at a just decision of a dispute.”
14. Therefore, this court has powers to vary, set aside or discharge orders issued in judicial review proceedings, where it is deemed fit.
15. In varying, setting aside or discharging orders issued in judicial review proceedings, The Court of Appeal in Civil Appeal No.77 of 2003, Judicial Commission of Inquiry to the Goldenberg Affair vs. Job Kilach referring to the case of Ex parte Harbage quoted from Page 14 thereof as follows;
“The next point to make is that although appeal does lie to this court against an ex-parte order made by a judge of High Court… nevertheless in his judgment in that case Sir Donalds on MR [1983] 3 All E.R. 589 at page 593 said:
“I have said ex-parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the Applicant is under duty to make full disclosure of all relevant information in his possession whether or not it assists his application this is no basis for making a definite order and every judge knows this. He expects at a later stage to be given opportunity to review his provisional order in the light of evidence and argument adduced by the other side and in so doing he is not hearing an appeal from himself and in no way feels inhibited from discharging or varying his original order. This being the case it is difficult if not impossible to think of circumstances in which it would be proper to appeal to this court against an ex parte order without just giving the High Court judge an opportunity of reviewing it in light of argument from the defendant and reaching a decision.”
16. I entirely agree with the sentiments of H. Omondi J in Republic v Vice Chancellor Moi University & 3 others Ex-Parte Benjamin J. Gikenyi Magare [2018] eKLR where in an application to vacate stay orders in a judicial review application she stated;
“To request the court to re-look at the background leading to the issuance of stay, is in my view not asking the court to sit on appeal on orders of a court of equal status. It is simply telling the court to reconsider the orders issued in light of the fact that the beneficiary of those orders concealed or did not disclose all the material facts prevailing. All the other issues raised will be better addressed at the hearing of the main motion.”
17. Judicial precedent in our jurisdiction has crystallized grounds for varying and/or setting aside leave to apply for judicial review or other orders to include material non-disclosure, concealment of material facts or documents, misrepresentation and where the application is an abuse of Court process. The Court in In the matter of an Application by Justus Nyangaya & Others, Nairobi Misc. Civil Case No.1133 of 2002 observed;
“However the courts have set aside ex parte orders obtained in judicial review proceedings following non-disclosure of material facts, concealment of material documents and on misrepresentation.”
18. In the case of Consumer Federation of Kenya (COFEK) and Others v Attorney General and Others Nairobi JR Misc. Appl. 185 of 2011 (Unreported), Warsame J (as he then was) stated;
“It is also important to restate that, in judicial review matter, court must resist being rigidly chained to the past situation and strict compliance with the procedure. A court of justice must intervene to stop acts in contravention of good governance and accountability in the field of administrative action.”
19. In the present matter, the Interested Party has argued that the ex-parte is guilty of non-disclosure of material facts. However, the non-disclosure has not been explained as to what the material facts are. The parties have made arguments about the custody of the children and about a Parental Responsibility Agreement.
20. To my mind, the issues as to the Parental Responsibility Agreement and the custody of the children cannot be determined on this forum. Judicial Review matters are in regard to procedure, save for where constitutional violations are alleged then the case can be reviewed on its on merit. In supporting my position, I make reference to the Supreme court of Kenya case of Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment).
21. Having found no evidence of non-disclosure of material facts, concealment of material documents, and on misrepresentation; It is my finding and I hold that the Interested Party’s Application dated 23rd April 2024 is devoid of merit and the same is dismissed. Cost shall be in the cause.
22. I shall now deal with the second Application.
The Substantive Application Dated 14th March, 2024
23. Pursuant to leave of court granted on 7th March, 2024, the ex-parte Applicant filed the Substantive Application a Notice of Motion dated 14th March, 2024. The substantive Application is said to be brought under Order 53, Rule 3 of the Civil Procedure Rules 2010. The substantive Application seeks for the following orders:
i. THAT this Honourable court be pleased to grant an Order of CERTIORARI to remove into this Honourable court for the purposes of quashing the entire proceedings taken before the Respondent, Honourable Charity C. Oluoch, CM in the Children Case no. E1746 of 2023 (hereinafter referred to as “the proceedings”).
ii. THAT this Honourable court be pleased to grant an Order of MANDAMUS compelling the Respondent to enforce the terms of the Parental Responsibility Agreement dated 4th April (sic) 2023.
iii. THAT the costs of this application be provided for.
24. The substantive Application is based on the grounds set out on its face, and on the Statutory Statement dated 1st March, 2024. The ex-parte Applicant also filed a Supporting Affidavit evenly dated; and a Verifying Affidavit dated 29th February, 2024 – both sworn by Jacinta Muthoni Mwangi. The ex-parte Applicant’s case is that the proceedings in the Magistrate’s Children Court are per incuriam - has failed to pay attention to relevant statutory provision or precedents.
25. That despite bringing to the Magistrates Children Court’s attention of an existing and subsisting Parental Responsibility Agreement dated 4th May, 2023; the Respondent in conducting the lower court proceedings did not acknowledge the agreement as being in force and legally binding pursuant to Section 33(3) of the Children’s Act, 2022. That the Respondent acted arbitrarily and in utter contravention of the rules of natural justice and in breach statute.
26. As per the ex-parte Applicant, the Respondent lacks powers to conduct the children custody proceedings without regard to the Parental Responsibility Agreement, as the agreement has not yet been set aside. To that end, that the Substantive Application ought to be allowed.
27. The Application is opposed.
28. The Respondent, through the Chief Registrar of the Judiciary, filed their Grounds of Oppositions dated 11th June, 2024 on the following grounds:
(a) A judicial decision, order or proceedings of a court of law are not administrative or quasi-judicial decisions or proceedings that would be amenable to challenge via judicial review proceedings.
(b) A party who is dissatisfied with the judicial decision, order or proceedings of a court of law can only challenge that decision, order or proceedings by way of an application for review before the same court, or appeal to a higher court naming the other party as respondent, and not by way of Judicial Review proceedings naming the court and the presiding Judicial Officer as respondents.
(c) Naming the court and the presiding Judicial Officer as Respondents in judicial review proceedings invites the court and the judicial officer to enter appearance and defend their decision or order before another court in a manner that is incompatible with our adversarial and hierarchical judicial system where disputes are between the parties who come to court, and the errors of one court can be corrected by the same court through review, or by a higher court on appeal.
(d) There exists a statutory right of appeal against the proceedings and decision of the Respondent and the grounds raised by the Ex Parte Applicant can be raised and addressed by way of that appeal.
(e) There are no exceptional circumstances warranting this court to exercise its Judicial Review jurisdiction when the Ex Parte Applicant has the option to lodge an appeal.
(f) The suit offends the doctrine of judicial immunity of the presiding Magistrate who enjoys immunity from being sued over actions done in good faith in discharge of judicial functions.
29. To buttress their cases, the respective party’s filed their written submissions. The ex-parte Applicant’s submissions in support are undated; while the Respondent’s submissions in opposition are dated 11th June, 2024; and the Interested Party’s submissions in opposition are dated 28th June, 2024.
30. In the main, the ex-parte Applicant submitted that the Respondent was obligated to pay regard to the Parental Responsibility Agreement in the Magistrate’s court proceedings. That the entire proceedings in the lower court, presided over by the Respondent, have been conducted in direct violation of Sections 33, 34, and 35 of the Children Act.
31. On Judicial Review being the appropriate relief, it was argued in the affirmative. It is posited that judicial review proceedings are taken against administrative decisions of judicial and quasi-judicial officers. Relied on Article 22, 23, and 47 of the Constitution, Section 2 of the Fair Administrative Action Act; and the cases of Republic v. Chief Justice of Kenya & and Others Ex-Parte Moijo Mataiya Ole Keiwua (2010) eKLR; and the Supreme Court's decision in Hon. Justice Said Chitembwe v. the Tribunal Appointed to Investigate into the Conduct of Hon. Justice Said Juma Chitembwe, Petition No. E001 of 2023.
32. As per the ex-parte Applicant, the key issue in this judicial review is whether the decision was "lawful or unlawful," whereas the issue in an appeal is whether the decision was "right or wrong." Differently put, that Judicial Review focuses on the decision-making process rather than the decision itself. Reliance was place in Republic v Chief Magistrate’s Court at Milimani Law Courts; Director of Public prosecutions & 2 others; Ex parte Applicant: Pavin Galot [2020] eKLR; RGIS Kenya Limited vs Kenya Power and Lighting Company and Public Procurement Administrative Review Board HCJR/E040/2024; Anisminic Ltd v Foreign Compensation Commission [1968] APP.L.R. 12/17.
33. Further, the ex-parte Applicant posited that the instant Application for setting aside the leave granted in merited. That the purpose of granting a stay in judicial review proceedings is to suspend the challenged proceedings pending the resolution of the judicial review. Republic v. National Assembly & Another, ex parte Coalition for Reform and Democracy (CORD) [2016] eKLR case was relied upon.
34. It was maintained that the ex-parte Applicant has demonstrated the proceedings in the Magistrate’s court are in direct contravention of Section 33 of the Children Act; and Respondent's actions were procedurally flawed and substantively unjust for disregard of the Parental Responsibility Agreement. Thus, that the Respondent misapplication of the law necessitate this Court's intervention, and warrants the orders sought.
35. Conversely, in opposing the Application, the Respondent posited that in this judicial proceedings against the Judicial officer is in contravention of principle of judicial immunity under Article 160 (5) of the Constitution, Section 45 of the Judicial Service Act, and Section 8 of the Judicature Act. Relied on the Supreme Court’s case of Bellevue Development Company v. Francis Gikonyo & 3 Others, SC Pt No. 42 of 2018; [2020] eKLR.
36. That when an alleged error arises from judicial proceedings, or where proceedings or decisions are already judicial as in this case, the only options for correcting that error are through an application for review or an appeal to a higher court, and not by way of Judicial Review proceedings. Relied on Nairobi Judicial Review Misc. Civil Application No. 99 OF 2019 Republic v RO Mbogo & another; Alfred Ndemo Nyakundi (Interested Party) Ex parte Diana Mutheu & another [2020] eKLR; Republic v Chief Magistrate, Mombasa & 3 others; Sega Ventures Limited & another (Interested Parties); Kirima (Ex parte) (Judicial Review Application 1 of 2022) [2023] KEELC 180 (KLR); and National Social Security Fund v Sokomania Ltd & Chief Magistrate’s Court Milimani [2021] eKLR cases.
37. The Respondent averred that the grievances now presented by the Ex Parte Applicant can adequately be addressed by way of appeal against the decision of the Respondent once the proceedings are concluded and a decision is rendered.
38. That if these proceedings are not struck out, the Magistrate who made the impugned decision – having been named as the Respondent - may be required to swear an Affidavit explaining the soundness of her judicial proceedings, and may be compelled to pay costs. This is not only unprecedented but is also completely at odds with our adversarial judicial system. In the end, it is maintained that this Applicant against the Respondent is fatally defective and ought to be dismissed with cost.
39. In further opposition to the Application, the Interested Party in their submissions reiterated their case regarding the Parental Responsibility Agreement. Additionally, they posited similarly on the immunity of Judicial officers and cited Article 160(5) of the Constitution, and Section 6 of the Judicature Act; and on the difference between appeals and judicial review. It was maintained that the grievances of the ex-parte ought to have been addressed in an appeal and not a judicial review case – against the judicial officer who presided the lower court matter. That the present Application is rife for dismissal with cost.
Analysis and Determination
40. I have carefully considered the Application, responses, and the annexures thereto. I have also paid due regard to the submissions by the learned counsel for each party. The issue that arises for determination is: Whether the Substantive Application is merited to grant the orders sought.
41. The Court of Appeal has held in the Speaker of the National Assembly v. Karume, Civil Application No. NAI 92 OF 1992 that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
42. Therefore, before requesting judicial review remedies in court, an aggrieved party should consider other remedies, such as appeal procedures, provided for under the statute and in precedent. When evaluating whether a public entity has misused its authority, the reviewing courts will always be mindful that they should not misuse their own authority by hearing cases that they otherwise shouldn't have considered.
43. Nevertheless, the question that then begs is: whether an applicant can invoke the judicial review jurisdiction of this Honourable Court instead of filing an appeal. It is clear from the above provision that it is an appeal rather than an application for judicial review that ought to be filed against decisions of the lower court’s decision.
44. An appeal is not the same as judicial review. Appellate jurisdiction allows the appellate court to substitute its own decision, unlike judicial review, which focuses on the process rather than the decision's merits. It is not part of the purpose for judicial review to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question (see Lord Hailsham in Chief Constable of the North Wales Police versus Evans (1982) 1 WLR 1155 at 1160F).
45. It has also been held in R versus Entry Clearance Officer, Bombay ex p Amin (1983) 818 at 829 (B-C) (per Lord Fraser) that judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing an administrative decision without substituting its own decision, and it is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer.
46. Similarly, in the case Chief Constable of North Wales Police versus Evans (supra) Lord Brightman said at page 1173F and 1174G that:
“Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power…Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”
47. Lord Hailsham stated in the same case that:
“The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court.” (At page 1161A).
48. On his part Lord Roskill said in R versus Inland Revenue Commissioners ex-parte National Federation of Self-Employed and Small Businesses Ltd 1982(AC) 617 at 633C that:
“The court must not cross that boundary between administration whether good or bad which is lawful and what is unlawful performance of a statutory duty”.
49. Essentially, even if the applicant were to convince the court that there are exceptional reasons justifying immediate recourse to court before exhausting other remedies under the law, and that it would serve justice to grant this exemption, the procedure he seeks to use for addressing his grievances is not permissible.
50. On that premise, I find and hold that the ex-parte Applicant’s Notice of Motion dated 14th March, 2024 lacks merit and the same is dismissed with cost.