1. On 3rd November 2023 the Ex-Parte Applicant filed an application for Orders: -
1) THAT this Honourable Court does certify this Application as urgent and dispose of to Ex-Parte in the first instance.
2) THAT an Order of Mandamus do issue, directing the 4th Respondent to disconnect all illegal electricity connections within Pumwani Maternity Hospital; Senior Staff House No.1 and 2 along Meru Road immediately.
3) THAT an Order of Mandamus do issue, directing the 5th Respondents to provide security to the Ex-Parte applicants, specifically Pumwani Maternity Hospital; Senior Staff House No. 1and 2 along Meru Road immediately.
4) THAT an Order of Prohibition do issue, prohibiting 1st to 3rd Respondents from collecting the Kshs 7,500/- monthly temporary Occupation License Fees from the Nairobi Miraa Business community, pending the hearing and determination of this application.
5) THAT an Order of Prohibition do issue, prohibiting 1st to 3a Respondents from renewal of the Temporary Occupation License [TOL] to the Nairobi Miraa Business community, pending the hearing and determination of this application.
6) THAT an Order of Certiorari do issue to bring to this court the Temporary Occupation License [TOL] reference VAL. 791/sg/1/0/001/nn1/jsk dated 16th November, 2022 for quashing.
7) THAT the costs of this application be provided for.
2. In response to the application, the 1st to 3rd Respondents filed a notice of preliminary Objection (PO) dated 22nd November, 2023. It raises the following grounds:
1) THAT the Ex-Parte Applicants neither sought nor were they granted leave to commence the judicial review proceedings herein having failed to abide by the dictates of Order 53 rule 1 of the Civil Procedure Rules, 2010, which expressly provide that no application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with the said rule.
2) Omitted
3) Omitted
4) THAT the suit has been filed outside the mandatory statutory timelines expressed by section 9 (3) of the Law Reform Act, (Cap 26 Laws of Kenya), which provide that leave shall not be granted unless the application for leave is made not later than six months after the date of the impugned act.
THE EX-PARTE APPLICANT’ CASE
3. In responding to the issue whether the suit has been filed outside the stipulated mandatory statutory timelines it is its case that, the Law Reform Act section 9 (2) and (3) are explicit as to what must be filed within the timelines, stated as statutory timelines in the Preliminary Objection. As is stated:
“(2) Subject to the provisions of subsection (3), rules made under subsection (1) may prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates.
(3) In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
4. It is its case that the instant application being anchored on Article 47 of the Constitution and specifically not being; a judgment, order, decree, conviction or other proceeding, is insulated from impeachment by the statutory time-lines as raised in the Preliminary Objection herein.
5. Reliance is placed on the decision in the Supreme Court Petition No. 14 of 2017 in Kiluwa Limited and another VS Business Liaison Company Limited and 3 others; where it was stated at paragraph 50:
“It is trite law that for a party to be time-barred from litigating its claim, such limitation of time must be stated in the Constitution, statute or as a principle of Common law\".
6. The applicants argue that the preliminary objection(P0) does not address the instant decision that the Applicants seek quashed, as it does not fall within the specified decisions stipulated in section 9 sub-section 3 of law reform Act and the preliminary objection must fail.
7. On the issue whether it is necessary for leave to be sought prior to commencing judicial review proceedings it is the applicant\'s case that the provisions of Articles 23 and 47 of the constitution of Kenya, (2010) leave would not be a prerequisite for an application for judicial review orders.
8. The supreme court of Kenya in Petition No. 14 of 2017: in Kiluwa Limited and another VS Business Liaison Company Limited and 3 others, pronounced Itself at paragraph 45 to 46 thus:
“It is in this context that we must consider the issue as to whether Article 47 of the Constitution can be applied retrospectively to the dispute at hand. First and foremost, in agreement with the appellants, we note that Article 47 is a Bill of Rights provision which is stated in deliberate and clear normative terms. Thus, sub-Article 1 thereof provides that:
\"Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair\"
While sub-Article 2 provides that:
\"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.\"
We note that Article 47 is a Bill of Rights provision which is stated in deliberate and clear normative terms. Thus, sub-Article 1 thereof provides that: \"Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair\" While sub-Article 2 provides that: \"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.\"
These provisions set out clear and un-ambiguous entitlements within the language of the Bill of rights. They are expressed in normative terms, as opposed to general principles that would require the further input of the legislature so as to attain prescriptive force. In our view, contrary to the holding by the Court of Appeal, these are substantive entitlements whose enjoyment was not intended to be suspended by sub-article 3 thereof. The legislation contemplated was not meant to create any other norms apart from the ones provided for by the Constitution.
The Supreme law thus required that such legislation provide for review of administrative action by either a court or independent tribunal. The legislation was also to provide for efficient administration. The basis for review of administrative action is already provided for in sub-article 1 (expedition, efficiency, lawfulness, reasonableness and procedural fairness).
The effect of sub-article 3 was therefore to perfect the enjoyment of these rights, as opposed to suspending such entitlement by divesting the High Court of Jurisdiction to review administrative action...\"
9. It is their case that the JR application dated 3rd November, 2023 was properly applied for and merits the remedies prayed for, as there is no bar by any statutory timelines or prerequisite for leave before filling the Application; where the provisions of Article 23 and 47 of the Constitution are the legal basis on which the application is grounded.
1ST, 2ND & 3RD RESPONDENTS CASE;
10. Upon being served with the Application, the 1st, 2nd and 3rd Respondents filed a Notice of Preliminary Objection which was anchored on the grounds that;
i. The Ex-Parte Applicants neither sought nor were granted leave to commence the judicial review proceedings herein having failed to abide by the dictates of Order 53 rule 1 of the Civil Procedure Rules 2010, which expressly provide that no application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with the said rule.
ii. The Ex-Parte Applicants have not exhausted the local remedies available having not lodged any complaint whatsoever with the 1st, 2nd and 3rd Respondents in accordance with the terms of the Temporary Occupation License (T.O.L) – Along Meru Road Within Pumwani Hospital Staff Housing Quarters dated 16th November 2022 and marked as Ex-Parte Applicants exhibit “LAO-02”.
iii. There is no certificate of electronic evidence that has been filed to prove the authenticity of the images marked and annexed as exhibit “LAO-01” and therefore the same is inadmissible in terms of section 106(B)(4) of the Evidence Act, Cap 80 Laws of Kenya.
iv. The suit has been filed outside the mandatory statutory timelines expressed by section 9(3) of the Law Reform Act (Cap 26 Laws of Kenya) which provides that leave shall not be granted unless the application for leave is made not later than six months after the date of the impugned act.
11. It is their case that the suit has been filed outside the stipulated mandatory statutory timelines.
12. Section 9(3) of the Law Reform Act provides as follows;
“In the case for an Application for an order of certiorari to remove any judgment, order , decree, conviction or other proceedings for the purpose of its being quashed , leave shall not be granted unless the Application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order , decree , conviction or other proceeding is subject to appeal , and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
13. The Temporary Occupation License (TOL) reference VAL.791/SG/1/0/001/NN1/jsk which the Ex-Parte Applicants seek to be quashed was decreed by the Office of the Governor on 16th November 2022 While the judicial review application was filed on 16th November 2023.
14. The Applicants did not seek the leave of the court to file the judicial review application out of time.
15. Reliance is placed in the case of Amina Karama vs. Njagi Gachangua & 3 Others (2020) eKLR , where it was held that;
“It has been held that equity aids the vigilant and not the indolent. It has also been held that delay defeats equity. In the case of Ibrahim Mungara Mwangi vs Francis Ndegwa Mwangi (2014) e KLR the court quoted the following passage from Snell’s Equity by John MC Ghee Q.C (31stEdition) at page 99;
‘The Court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these want the court is passive, and does nothing.”
16. Order 53 rule 2 of the Civil Procedure Rules 2010 provide that;
“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order , decree , conviction or other proceeding for the person of its being quashed , unless the Application for leave is made not later than six months after the date of the proceedings or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
17. It is their case that rules of procedure must be complied with by parties seeking justice from courts of law and this Honorable court therefore ought not be misled by the Ex-Parte Applicants with a bid to rely on Article 159(2) (d) of the Constitution on procedural technicalities.
18. In the case of Raila Odinga and 5 Others vs. IEBC and 3 Others (2013) on the question of the applicability of Article 159(2)(d) , the Supreme Court rendered itself as follows;
“Our attention has repeatedly been drawn to the provisions of Article 159(2) (d) of the constitution which obliges a Court of law to administer justice without undue regard to procedural technicalities. The article simply means that a court of law should not pay attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from courts of law.”
19. In dismissing an Application seeking for leave under Section 9(3) of the Law Reform Act and Order 53 (2) of the Civil Procedure Rules 2010, the Court in the case of Nzuki vs. Muthengi & Another (Civil Application E001 of 2021 & Miscellaneous Application E003 & E004 of 2021 (Consolidated) (2022) KEELC 2731(KLR) 28th June 2022 (Ruling) held as follows;
“I further agree with the court’s decision in the case of Thitu Wambua v Minister for Lands & 2 Others (2018) e KLR where the court held that the issue of limitation of time is not a procedural technicality because it goes to the root of the jurisdiction of the court;
‘On the issue of limitation of time, the Motion was filed without any Application to enlarge time. Without an Application for enlargement of time, the provision of Section 9(3) of the Law Reform Act prevails. The issue of limitation of time is not a procedural technicality because it goes to the root of the jurisdiction of the court.”
20. On the second limb of the Preliminary Objection, they argue that Section 8 and 9 of the Law Reform Act and by extension Order 53 rule 1 of the Civil Procedure Rules 2010 require that leave be sought and obtained before an application is made for judicial review orders.
21. Reliance is placed in the case of National Social Security Fund vs. Sokomania Ltd & Another (2021) e KLR Okongo J stated as follows;
“Leave is however still required in my view where an Applicant for judicial review moves the court under the Law Reform Act Chapter 26 Laws of Kenya and Order 53 of the Civil Procedure Rules. Following the promulgation of the Constitution of Kenya 2010, and Fair Administrative Action Act, 2015, Applicants for judicial review orders have a choice. They can anchor their judicial review applications under the Constitution of Kenya 2010, and Fair Administrative Action Act, 2015 in which case they will not need leave of the court or go for the same relief under the Law Reform Act Chapter 26 Laws of Kenya and order 53 of the Civil Procedure Rules like in the present case and be bound to seek leave of the court.”
22. It is their case that the Ex-Parte Applicants herein were bound to seek leave of the court and ultimately, they believe that costs should follow the event.
ANALYSIS AND DETERMINATION;
This court will first determine what is before it amounts to a Notice of Preliminary Objection;
23. The Court of Appeal decision in Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd . [1969] E.A. 696. of preliminary objections, Law, JA in that case said (p.700):
“So far as I am aware, 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.”
And to the same effect Newbold, P stated (p.701):
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued 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. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop.”
A preliminary objection, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence.
Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.
24. It is my considered view and I so hold that the substratum of the Notice of Preliminary objection in this suit is within the principles as enunciated in the Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] given that it flows from the procedural statutory framework of Order 53 of the Civil Procedure Rules.
This court will now proceed to determine whether leave is required to institute a judicial review suit:
25. Order 53 Rule 1 of the Civil Procedure Rules 2010, that an Applicant must seek leave to institute judicial review proceedings. The section stipulates that, Applications for mandamus, prohibition and certiorari to be made only with leave.
“(2) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with this rule.”
26. In the case of Nicholas Kiptoo Arap Korir Salat vs. the Independent Electoral and Boundaries Commission and 6 Others [2013| eKLR, the court held that,
\"I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even- handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.\"
“We have said enough of this matter, which to some might appear trivial, though fundamental in the determination of the issue as to whether the appellant\'s Motion for review of the 1st Respondent\'s decision stood the competency test weighed against mandatory rules of procedure. Having carefully considered the appeal before us, the judgment of the High Court and the respective positions of the parties considered against the Constitution, the statute and judicial precedents relevant to the issue, we reach the inescapable conclusion that the appellant\'s appeal must fail. It is hereby dismissed with costs to the respondents.\"
27. Section 14 of the Fair Administrative Action Act provides for transition as follows:
“(1) In all proceedings pending whether preparatory or incidental to, or consequential upon any proceedings in court at the time of the coming into force of this Act, the provisions of this Act shall apply, but without prejudice to the validity of anything previously done.
(2) Despite subsection (1)-
(a) if, and in so far as it is impracticable in any proceedings to apply the provisions of this Act, the practice and procedure obtaining before the enactment of this Act shall be followed; and
(b) in any case of difficulty or doubt the Chief Justice may issue practice notes or directions as to the procedure to be adopted.”
28. In the case of Matagei v Attorney General; Law Society of Kenya (Amicus Curiae) (Petition 337 of 2018) [2021] KEHC 460 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment) Felix Kiprono Matagei v Attorney General; Law Society of Kenya (Amicus Curiae) [2021] eKLR Neutral citation: [2021] KEHC 460 (KLR) it was held that:
“The procedural rules in order 53 of the CPR governed judicial review prior the promulgation of the Constitution and are still in force as they have not been repealed.”
There, however, would appear to be a clear intention to repeal and replace these rules and their originating law being sections 8 and 9 of the LR Act.
The clear objective of the FAA Act under section 10(2) is to have a regime of rules made by the Chief Justice governing judicial review of administrative action.
The section provides:
“The Chief Justice may make rules of practice for regulating the procedure and practice in matters relating to judicial review of administrative action.”
In any event Section 14 of the FAA Act provides for transition as follows:
“14. Transition provisions.
(1) In all proceedings pending whether preparatory or incidental to, or consequential upon any proceedings in court at the time of the coming into force of this Act, the provisions of this Act shall apply, but without prejudice to the validity of anything previously done.
(2) Despite subsection (1)-
(a) if, and in so far as it is impracticable in any proceedings to apply the provisions of this Act, the practice and procedure obtaining before the enactment of this Act shall be followed; and
(b) in any case of difficulty or doubt the Chief Justice may issue practice notes or directions as to the procedure to be adopted.”
29. The Applicant\'s indicate that they moved the court under Articles 23 and 47 of the Constitution. However the reliefs and the evidence are not Constitutional in nature.
30. Order 53 rule 2 of the Civil Procedure Rules 2010 provides as follows;
“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order , decree , conviction or other proceeding for the purposes of its being quashed , unless the Application for leave is made not later than six months after the date of the proceedings or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
31. The Ex-Parte applicant seeks a host of prayers for Mandamus, Prohibition and Certiorari inter alia.
32. It is this court’s finding that the only prayer that would have collapsed under this limb of the Notice preliminary objection since it has a six months statutory limitation window is the prayer;
“THAT Order of Certiorari do issue to bring to this court the Temporary Occupation License [TOL] reference VAL. 791/sg/1/0/001/nn1/jsk dated 16th November, 2022 for quashing.”
The rest of the prayers would have survived had the applicant sought leave under Order 53 to institute judicial review proceedings which it didn’t. I need not add more.
COSTS;
33. The Law governing the issue of costs in suits is set out under Section 27 of the Civil Procedure Act. The Section provides;
“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers\"
34. In Republic vs. Rosemary Wairimu Munene, Ex-Parte Applicant vs. Kururu Dairy Farmers Co-operative Society Ltd the court held;
\"The issue of costs is the discretion of the court as provided under the above Section. The basic rule on attribution of costs is that costs follow the event it is well recognized that the principal costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case\"
35. In the instant suit since the Notice of preliminary objection has been upheld, it is this court’s finding that the 1st to 3rd Respondents are entitled to costs and I so hold.
DISPOSITION;
36. The sum totality of the foregoing is that the Ex-Parte application collapses under the statutory weight of the Notice of Preliminary Objection since they did not seek the leave of the court before instituting judicial review proceedings.
ORDER;
1) The Notice of preliminary objection dated 22nd November, 2023 is upheld.
2) The suit is struck out with costs to the 1st to 3rd Respondents.
1) THAT this Honourable Court does certify this Application as urgent and dispose of to Ex-Parte in the first instance.
2) THAT an Order of Mandamus do issue, directing the 4th Respondent to disconnect all illegal electricity connections within Pumwani Maternity Hospital; Senior Staff House No.1 and 2 along Meru Road immediately.
3) THAT an Order of Mandamus do issue, directing the 5th Respondents to provide security to the Ex-Parte applicants, specifically Pumwani Maternity Hospital; Senior Staff House No. 1and 2 along Meru Road immediately.
4) THAT an Order of Prohibition do issue, prohibiting 1st to 3rd Respondents from collecting the Kshs 7,500/- monthly temporary Occupation License Fees from the Nairobi Miraa Business community, pending the hearing and determination of this application.
5) THAT an Order of Prohibition do issue, prohibiting 1st to 3a Respondents from renewal of the Temporary Occupation License [TOL] to the Nairobi Miraa Business community, pending the hearing and determination of this application.
6) THAT an Order of Certiorari do issue to bring to this court the Temporary Occupation License [TOL] reference VAL. 791/sg/1/0/001/nn1/jsk dated 16th November, 2022 for quashing.
7) THAT the costs of this application be provided for.
2. In response to the application, the 1st to 3rd Respondents filed a notice of preliminary Objection (PO) dated 22nd November, 2023. It raises the following grounds:
1) THAT the Ex-Parte Applicants neither sought nor were they granted leave to commence the judicial review proceedings herein having failed to abide by the dictates of Order 53 rule 1 of the Civil Procedure Rules, 2010, which expressly provide that no application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with the said rule.
2) Omitted
3) Omitted
4) THAT the suit has been filed outside the mandatory statutory timelines expressed by section 9 (3) of the Law Reform Act, (Cap 26 Laws of Kenya), which provide that leave shall not be granted unless the application for leave is made not later than six months after the date of the impugned act.
THE EX-PARTE APPLICANT’ CASE
3. In responding to the issue whether the suit has been filed outside the stipulated mandatory statutory timelines it is its case that, the Law Reform Act section 9 (2) and (3) are explicit as to what must be filed within the timelines, stated as statutory timelines in the Preliminary Objection. As is stated:
“(2) Subject to the provisions of subsection (3), rules made under subsection (1) may prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates.
(3) In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
4. It is its case that the instant application being anchored on Article 47 of the Constitution and specifically not being; a judgment, order, decree, conviction or other proceeding, is insulated from impeachment by the statutory time-lines as raised in the Preliminary Objection herein.
5. Reliance is placed on the decision in the Supreme Court Petition No. 14 of 2017 in Kiluwa Limited and another VS Business Liaison Company Limited and 3 others; where it was stated at paragraph 50:
“It is trite law that for a party to be time-barred from litigating its claim, such limitation of time must be stated in the Constitution, statute or as a principle of Common law\".
6. The applicants argue that the preliminary objection(P0) does not address the instant decision that the Applicants seek quashed, as it does not fall within the specified decisions stipulated in section 9 sub-section 3 of law reform Act and the preliminary objection must fail.
7. On the issue whether it is necessary for leave to be sought prior to commencing judicial review proceedings it is the applicant\'s case that the provisions of Articles 23 and 47 of the constitution of Kenya, (2010) leave would not be a prerequisite for an application for judicial review orders.
8. The supreme court of Kenya in Petition No. 14 of 2017: in Kiluwa Limited and another VS Business Liaison Company Limited and 3 others, pronounced Itself at paragraph 45 to 46 thus:
“It is in this context that we must consider the issue as to whether Article 47 of the Constitution can be applied retrospectively to the dispute at hand. First and foremost, in agreement with the appellants, we note that Article 47 is a Bill of Rights provision which is stated in deliberate and clear normative terms. Thus, sub-Article 1 thereof provides that:
\"Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair\"
While sub-Article 2 provides that:
\"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.\"
We note that Article 47 is a Bill of Rights provision which is stated in deliberate and clear normative terms. Thus, sub-Article 1 thereof provides that: \"Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair\" While sub-Article 2 provides that: \"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.\"
These provisions set out clear and un-ambiguous entitlements within the language of the Bill of rights. They are expressed in normative terms, as opposed to general principles that would require the further input of the legislature so as to attain prescriptive force. In our view, contrary to the holding by the Court of Appeal, these are substantive entitlements whose enjoyment was not intended to be suspended by sub-article 3 thereof. The legislation contemplated was not meant to create any other norms apart from the ones provided for by the Constitution.
The Supreme law thus required that such legislation provide for review of administrative action by either a court or independent tribunal. The legislation was also to provide for efficient administration. The basis for review of administrative action is already provided for in sub-article 1 (expedition, efficiency, lawfulness, reasonableness and procedural fairness).
The effect of sub-article 3 was therefore to perfect the enjoyment of these rights, as opposed to suspending such entitlement by divesting the High Court of Jurisdiction to review administrative action...\"
9. It is their case that the JR application dated 3rd November, 2023 was properly applied for and merits the remedies prayed for, as there is no bar by any statutory timelines or prerequisite for leave before filling the Application; where the provisions of Article 23 and 47 of the Constitution are the legal basis on which the application is grounded.
1ST, 2ND & 3RD RESPONDENTS CASE;
10. Upon being served with the Application, the 1st, 2nd and 3rd Respondents filed a Notice of Preliminary Objection which was anchored on the grounds that;
i. The Ex-Parte Applicants neither sought nor were granted leave to commence the judicial review proceedings herein having failed to abide by the dictates of Order 53 rule 1 of the Civil Procedure Rules 2010, which expressly provide that no application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with the said rule.
ii. The Ex-Parte Applicants have not exhausted the local remedies available having not lodged any complaint whatsoever with the 1st, 2nd and 3rd Respondents in accordance with the terms of the Temporary Occupation License (T.O.L) – Along Meru Road Within Pumwani Hospital Staff Housing Quarters dated 16th November 2022 and marked as Ex-Parte Applicants exhibit “LAO-02”.
iii. There is no certificate of electronic evidence that has been filed to prove the authenticity of the images marked and annexed as exhibit “LAO-01” and therefore the same is inadmissible in terms of section 106(B)(4) of the Evidence Act, Cap 80 Laws of Kenya.
iv. The suit has been filed outside the mandatory statutory timelines expressed by section 9(3) of the Law Reform Act (Cap 26 Laws of Kenya) which provides that leave shall not be granted unless the application for leave is made not later than six months after the date of the impugned act.
11. It is their case that the suit has been filed outside the stipulated mandatory statutory timelines.
12. Section 9(3) of the Law Reform Act provides as follows;
“In the case for an Application for an order of certiorari to remove any judgment, order , decree, conviction or other proceedings for the purpose of its being quashed , leave shall not be granted unless the Application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order , decree , conviction or other proceeding is subject to appeal , and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
13. The Temporary Occupation License (TOL) reference VAL.791/SG/1/0/001/NN1/jsk which the Ex-Parte Applicants seek to be quashed was decreed by the Office of the Governor on 16th November 2022 While the judicial review application was filed on 16th November 2023.
14. The Applicants did not seek the leave of the court to file the judicial review application out of time.
15. Reliance is placed in the case of Amina Karama vs. Njagi Gachangua & 3 Others (2020) eKLR , where it was held that;
“It has been held that equity aids the vigilant and not the indolent. It has also been held that delay defeats equity. In the case of Ibrahim Mungara Mwangi vs Francis Ndegwa Mwangi (2014) e KLR the court quoted the following passage from Snell’s Equity by John MC Ghee Q.C (31stEdition) at page 99;
‘The Court of equity has always refused its aid to stale demands where a party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence; where these want the court is passive, and does nothing.”
16. Order 53 rule 2 of the Civil Procedure Rules 2010 provide that;
“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order , decree , conviction or other proceeding for the person of its being quashed , unless the Application for leave is made not later than six months after the date of the proceedings or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
17. It is their case that rules of procedure must be complied with by parties seeking justice from courts of law and this Honorable court therefore ought not be misled by the Ex-Parte Applicants with a bid to rely on Article 159(2) (d) of the Constitution on procedural technicalities.
18. In the case of Raila Odinga and 5 Others vs. IEBC and 3 Others (2013) on the question of the applicability of Article 159(2)(d) , the Supreme Court rendered itself as follows;
“Our attention has repeatedly been drawn to the provisions of Article 159(2) (d) of the constitution which obliges a Court of law to administer justice without undue regard to procedural technicalities. The article simply means that a court of law should not pay attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from courts of law.”
19. In dismissing an Application seeking for leave under Section 9(3) of the Law Reform Act and Order 53 (2) of the Civil Procedure Rules 2010, the Court in the case of Nzuki vs. Muthengi & Another (Civil Application E001 of 2021 & Miscellaneous Application E003 & E004 of 2021 (Consolidated) (2022) KEELC 2731(KLR) 28th June 2022 (Ruling) held as follows;
“I further agree with the court’s decision in the case of Thitu Wambua v Minister for Lands & 2 Others (2018) e KLR where the court held that the issue of limitation of time is not a procedural technicality because it goes to the root of the jurisdiction of the court;
‘On the issue of limitation of time, the Motion was filed without any Application to enlarge time. Without an Application for enlargement of time, the provision of Section 9(3) of the Law Reform Act prevails. The issue of limitation of time is not a procedural technicality because it goes to the root of the jurisdiction of the court.”
20. On the second limb of the Preliminary Objection, they argue that Section 8 and 9 of the Law Reform Act and by extension Order 53 rule 1 of the Civil Procedure Rules 2010 require that leave be sought and obtained before an application is made for judicial review orders.
21. Reliance is placed in the case of National Social Security Fund vs. Sokomania Ltd & Another (2021) e KLR Okongo J stated as follows;
“Leave is however still required in my view where an Applicant for judicial review moves the court under the Law Reform Act Chapter 26 Laws of Kenya and Order 53 of the Civil Procedure Rules. Following the promulgation of the Constitution of Kenya 2010, and Fair Administrative Action Act, 2015, Applicants for judicial review orders have a choice. They can anchor their judicial review applications under the Constitution of Kenya 2010, and Fair Administrative Action Act, 2015 in which case they will not need leave of the court or go for the same relief under the Law Reform Act Chapter 26 Laws of Kenya and order 53 of the Civil Procedure Rules like in the present case and be bound to seek leave of the court.”
22. It is their case that the Ex-Parte Applicants herein were bound to seek leave of the court and ultimately, they believe that costs should follow the event.
ANALYSIS AND DETERMINATION;
This court will first determine what is before it amounts to a Notice of Preliminary Objection;
23. The Court of Appeal decision in Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd . [1969] E.A. 696. of preliminary objections, Law, JA in that case said (p.700):
“So far as I am aware, 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.”
And to the same effect Newbold, P stated (p.701):
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued 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. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issues. This improper practice should stop.”
A preliminary objection, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence.
Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.
24. It is my considered view and I so hold that the substratum of the Notice of Preliminary objection in this suit is within the principles as enunciated in the Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] given that it flows from the procedural statutory framework of Order 53 of the Civil Procedure Rules.
This court will now proceed to determine whether leave is required to institute a judicial review suit:
25. Order 53 Rule 1 of the Civil Procedure Rules 2010, that an Applicant must seek leave to institute judicial review proceedings. The section stipulates that, Applications for mandamus, prohibition and certiorari to be made only with leave.
“(2) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with this rule.”
26. In the case of Nicholas Kiptoo Arap Korir Salat vs. the Independent Electoral and Boundaries Commission and 6 Others [2013| eKLR, the court held that,
\"I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even- handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.\"
“We have said enough of this matter, which to some might appear trivial, though fundamental in the determination of the issue as to whether the appellant\'s Motion for review of the 1st Respondent\'s decision stood the competency test weighed against mandatory rules of procedure. Having carefully considered the appeal before us, the judgment of the High Court and the respective positions of the parties considered against the Constitution, the statute and judicial precedents relevant to the issue, we reach the inescapable conclusion that the appellant\'s appeal must fail. It is hereby dismissed with costs to the respondents.\"
27. Section 14 of the Fair Administrative Action Act provides for transition as follows:
“(1) In all proceedings pending whether preparatory or incidental to, or consequential upon any proceedings in court at the time of the coming into force of this Act, the provisions of this Act shall apply, but without prejudice to the validity of anything previously done.
(2) Despite subsection (1)-
(a) if, and in so far as it is impracticable in any proceedings to apply the provisions of this Act, the practice and procedure obtaining before the enactment of this Act shall be followed; and
(b) in any case of difficulty or doubt the Chief Justice may issue practice notes or directions as to the procedure to be adopted.”
28. In the case of Matagei v Attorney General; Law Society of Kenya (Amicus Curiae) (Petition 337 of 2018) [2021] KEHC 460 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment) Felix Kiprono Matagei v Attorney General; Law Society of Kenya (Amicus Curiae) [2021] eKLR Neutral citation: [2021] KEHC 460 (KLR) it was held that:
“The procedural rules in order 53 of the CPR governed judicial review prior the promulgation of the Constitution and are still in force as they have not been repealed.”
There, however, would appear to be a clear intention to repeal and replace these rules and their originating law being sections 8 and 9 of the LR Act.
The clear objective of the FAA Act under section 10(2) is to have a regime of rules made by the Chief Justice governing judicial review of administrative action.
The section provides:
“The Chief Justice may make rules of practice for regulating the procedure and practice in matters relating to judicial review of administrative action.”
In any event Section 14 of the FAA Act provides for transition as follows:
“14. Transition provisions.
(1) In all proceedings pending whether preparatory or incidental to, or consequential upon any proceedings in court at the time of the coming into force of this Act, the provisions of this Act shall apply, but without prejudice to the validity of anything previously done.
(2) Despite subsection (1)-
(a) if, and in so far as it is impracticable in any proceedings to apply the provisions of this Act, the practice and procedure obtaining before the enactment of this Act shall be followed; and
(b) in any case of difficulty or doubt the Chief Justice may issue practice notes or directions as to the procedure to be adopted.”
29. The Applicant\'s indicate that they moved the court under Articles 23 and 47 of the Constitution. However the reliefs and the evidence are not Constitutional in nature.
30. Order 53 rule 2 of the Civil Procedure Rules 2010 provides as follows;
“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order , decree , conviction or other proceeding for the purposes of its being quashed , unless the Application for leave is made not later than six months after the date of the proceedings or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
31. The Ex-Parte applicant seeks a host of prayers for Mandamus, Prohibition and Certiorari inter alia.
32. It is this court’s finding that the only prayer that would have collapsed under this limb of the Notice preliminary objection since it has a six months statutory limitation window is the prayer;
“THAT Order of Certiorari do issue to bring to this court the Temporary Occupation License [TOL] reference VAL. 791/sg/1/0/001/nn1/jsk dated 16th November, 2022 for quashing.”
The rest of the prayers would have survived had the applicant sought leave under Order 53 to institute judicial review proceedings which it didn’t. I need not add more.
COSTS;
33. The Law governing the issue of costs in suits is set out under Section 27 of the Civil Procedure Act. The Section provides;
“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers\"
34. In Republic vs. Rosemary Wairimu Munene, Ex-Parte Applicant vs. Kururu Dairy Farmers Co-operative Society Ltd the court held;
\"The issue of costs is the discretion of the court as provided under the above Section. The basic rule on attribution of costs is that costs follow the event it is well recognized that the principal costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case\"
35. In the instant suit since the Notice of preliminary objection has been upheld, it is this court’s finding that the 1st to 3rd Respondents are entitled to costs and I so hold.
DISPOSITION;
36. The sum totality of the foregoing is that the Ex-Parte application collapses under the statutory weight of the Notice of Preliminary Objection since they did not seek the leave of the court before instituting judicial review proceedings.
ORDER;
1) The Notice of preliminary objection dated 22nd November, 2023 is upheld.
2) The suit is struck out with costs to the 1st to 3rd Respondents.