1. The applicant’s application is a motion dated 13 June 2024 expressed to be brought under Order 53 Rule 4 of the Civil Procedure Rules, section 3A of the Civil Procedure Act, cap. 21 and sections 8 and 9 of the Law Reform Act, cap. 26. In the motion, the applicant has sought orders, thus:
“1. That this Application be certified urgent and the same be heard ex-parte in the first instance.
2. That this Honourable court be pleased to grant leave to the applicant to file documents in support of paragraph 6 and 7 of the statement of facts hereof.
3. That this Honourable Court do issue an order of Mandamus compelling the Respondent to supply the Applicant with a copy of the judgment delivered on 16ᵗʰ October 2023 in the Advocates Disciplinary Tribunal Cause No. 20 of 2022 In the Matter of a Complaint by William K. Gitau and Arcoverde (K) Limited Against Mary Waithiegeni Chege, Advocate on 10ᵗʰ June, 2024
4. That this Honourable Court do issue an order of Certiorari quashing the decision of the Respondent made on 16ᵗʰ October 2023 and letter dated 23ʳᵈ May 2024 compelling the Exparte Applicant to appear before it for mitigation and sentencing in the Advocates Disciplinary Tribunal Cause No. 20 of 2022 In The Matter of a Complaint by William K. Gitau and Arcoverde (K) Limited Against Mary Waithiegeni Chege, Advocate on 10ᵗʰ June, 2024.
5. That this Honourable Court do issue an order prohibiting the Respondent from proceeding with mitigation and sentencing of the Ex•parte Applicant in the Advocates Disciplinary Tribunal Cause No. 20 of 2022 In The Matter of a Complaint by William K. Gitau and Arcoverde (K) Limited Against Marv Waithiegeni Chege, Advocate as may be scheduled.
6. That this Honourable.Court be pleased to stay any further proceedings in the Advocates Disciplinary Tribunal Cause No. 20 of 2022 In The Matter of a Complaint bv William K. Gitau and Arcoverde (K) Limited agaimt Mary Waithiegeni Chege, Advocate pending hearing and determination of this motion.
7. That this Honourable Court be pleased to stay execution of the judgment delivered on 16ᵗʰ October 2023 in the Advocates Disciplinary Tribu11a/ Cause No. 20 0(2022 In The Matter of a Complaint by William K Gitau and Arcoverde (K) Limited against Marv Waithiegeni Chege, Advocate pending hearing and determination of this motion.
8. That this Honourable Court be pleased to give all necessary directions.”
2. The application is based on a statutory statement dated 6 June 2024 and an affidavit sworn on even date by Ms. Mary Wauthiegeni Chege, verifying the facts relied upon. According to the applicant, a complaint against her was filed with the respondent, being Advocates Disciplinary Tribunal Cause No. 20 of 2022; In the Matter of a complaint by William K. Gitau and Arcoverde (K) Limited Against Mary Waithiegeni Chege, Advocate. The applicant sought the following orders:-
“(a) Mary Waithiegeni Chege of admission number Pl05/4618/0l be suspended from practicing as an Advocate for a period to be determined by this Honourable Tribunal;
(b)Mary Waithiegeni Chege of admission number Pl05/4618/0l be and is hereby fined to the tune of the maximum sums prescribed under section 60(4) of the Advocates Act;
(c)Mary Waithiegeni Chege of admission number Pl05/4618/0J be and is hereby ordered and directed to release to me unconditionally, the seven (7) original leases, signed transfers and consents relating to seven plots situate in a property known as Kijani (precinct) 2B being part of LR No. 28867/1 (as more particularly delineated on the plan registered on 15th June 2017 in the Registry of Documents as Volume DJ, Folio 136/2362 File MMXVII);
(d) Costs of these proceedings be borne by Mary Chege; and
(e) In the alternative, Mary Waithiegeni Chege of acbnission number Pl05/4618/0J be struck off the role of Advocates of the High Court of Kenya.”
3. Parties filed their pleadings and a judgment date set by the tribunal. It was eventually rendered on 16 October 2023. According to this judgment, the applicant was was convicted. The applicant is aggrieved that the respondent only read out the final orders and, therefore, she is unaware of the reasons for the judgment.
4. Although the applicant sought to have a copy of the judgment, she has never been given the copy and that, as recently as recently as 4 June 2024, the respondent informed the applicant that the judgment was not ready yet the case was scheduled to come up for mitigation on 10 June 2024.
5. In response to the application, the respondent filed a preliminary objection dated 19 June 2024 on the grounds that:
“1.The application offends the provisions of Order 53 Rule 2 of the Civil Procedure Rules, 2010 and Section 9 of the Law Reform Act, Cap 26 Laws of Kenya which stipulate that Judicial Review proceedings must be commenced within 6 months from the date when the ground for the application arose. The application is therefore time-barred.
2.The application is fatally defective, hopelessly misconceived, misleading and is bad law under the doctrine of exhaustion as the ex-parte Applicant has violated the laid down procedure in instituting this suit.”
6. According to the respondent, section 9(3) of the Law Reform Act and Order 53 rule 2 of the Civil Procedure Rules require the applicant to have made the application within six months after the date of the impugned decision yet the applicant’s application was filed after eight months from the material date. In support of its arguments, the respondent cited Republic v Deputy County Commissioner, Makueni & 3 others; Matolo (Ex parte Applicant) (Environment and Land Judicial Review Case E021 of 2022) [2024] KEELC 1371 (KLR) (6 March 2024) (Judgment) where the court observed that the provisions relating to timelines within which to institute judicial review proceedings are couched in mandatory terms. Thus, as was held in Wilson Osolo v John Ojiambo Ochola & Another [1996] eKLR, the court does not have jurisdiction to extend time for instituting such proceedings.
7. In her rebuttal, the applicant urged that her application seeks various prerogative orders being an order of mandamus, certiorari and prohibition. Section 9(3) of the Law Reform Act and Order 53 rule 2, according to the applicant, only applies to an order of certiorari and that the reliefs of prohibition and mandamus are not subject to any limitation of time.
8. The applicant relied on Republic v Ministry of Lands and Urban Development & 4 others; Jeremiah Otieno (Interested Party)Ex parte Osoro Kennedy [2019] eKLR where the court held that “under Article 47 administrative processes are more of a constitutional discipline hence relief for administrative grievances is no longer left to the realm of common law but is to be measured against the standards established by the constitution”.
9. In any event, she urged, section 11 of the Fair Administrative Action Act, 2015 is to the effect that this Honourable Court has the power to grant any order that is just and equitable, including the power to extend time for applying for the quashing of the respondent’s decision.
10. As much as the parties have focused their attention on when the application for judicial review ought to have been filed, a more fundamental question ought to be whether, in the first place, it was open to the applicant to file an application for judicial review, as a way of challenging the respondent’s decision. This is a pertinent question because according to section 62 of the Advocates Act, cap. 16, a person dissatisfied with the respondent’s decision and who wishes to challenge it can only do so by way of an appeal and not through a judicial review application. This section reads as follows:
62. Appeal against order of Tribunal
(1) Any advocate aggrieved by order of the Tribunal made under section 60 may, within fourteen days after the receipt by him of the notice to be given to him pursuant to section 61(2), appeal against such order to the Court by giving notice of appeal to the Registrar, and shall file with the Registrar a memorandum setting out his grounds of appeal within thirty days after giving by him of such notice of appeal.
(2) The Court shall set down for hearing any appeal filed under subsection (1) and shall give to the Council of the Society and to the advocate not less than twenty-one days’ notice of the date of hearing.
(3) An appeal under this section shall not suspend the effect or stay the execution of the order appealed against notwithstanding that the order is not a final order. (Emphasis added).
11. It is not in dispute that the impugned judgment was made under section 60 of the Advocates Act and, that being the case, section 60 (1) states, in no uncertain terms, the nature and form the challenge of the impugned decision takes. It has to be an appeal and which, for the avoidance of doubt, must be filed by way of a memorandum of appeal in which the appellant sets out the grounds of appeal.
12. To discount any notion of a possibility of taking any other proceedings against the respondent’s decision than an appeal, section 64 of the Advocates Act goes further to state that once an appeal has been filed, the court will consider, not only the memorandum of appeal but also the evidence taken at the Tribunal. The section reads as follows:
64. Powers of Court
The Court, after considering the evidence taken by the Tribunal, the report of the Tribunal and the memorandum of appeal, and having heard the parties, and after taking any further evidence, if it thinks fit so to do, may—
(a) refer the report back to the Tribunal with directions for its findings on any specified point; or
(b) confirm, set aside or vary any order made by the Tribunal or substitute therefor such order as it may think fit;
and may also make such order as to the payment by any person of costs, or otherwise in relation to the appeal, as it may think fit.
13. Thus, it is an appeal rather than an application for judicial review that ought to be filed against decision of the respondent. It goes without saying that an appeal is not the same as judicial review and that the court cannot exercise its judicial review authority by assuming appellate jurisdiction.
14. And where the statute expressly provides for an appeal to this Honourable Court as a means of challenging a decision of a public body authority, person or tribunal, it is not open to an applicant, in those circumstances, to invoke the judicial review jurisdiction of the court.
15. This question has been discussed by David Foulkes in his book Foulkes Administrative Law, 7th Edition. Citing the case of Customs and Excise Commissioners versus J.H. Corbitt (Numismatists) Ltd (1981) AC 22, (1980) 2 2ALL ER 72, the learned author noted as follows:
“It is to be noted that an appeal lies from, whether to an appellate tribunal or to a court of law, only when and to the extent that statute so provides, and the powers of the appeal body to review, reconsider etc. the decision of the tribunal likewise depend on the statute.
To be contrasted with appeal is judicial review. The decision of tribunals, as bodies exercising judicial functions, have always been subject to review by the courts (that is, to judicial review) by means of the order of certiorari. This enables the court to quash a decision on certain grounds. Whereas appeal lies only when and to the extent that statute provides, the court’s common law power of judicial review exists unless it is take away or limited by statute. Thus where no appeal to the court is provided by statute the only possible challenge in the courts is by way of judicial review…” (at p.150-151). (Emphasis added).
16. No doubt this was the principle applied by Lord Wright in General Medical Council versus Spackman (1943) AC627, at 640 where he stated as follows:
“I have observed that Parliament has not provided for any appeal from the decisions of the council. The only control of the court to which the council is subject (apart from proceedings by way of mandamus) is the power which the court may exercise by way of certiorari. Certiorari is not an appellate power.”
17. Thus, judicial review only sets in if parliament has not, by statute, provided for an appeal. By its very nature, judicial review comes into play where there is no other alternative form of remedy that is as convenient, beneficial and effective. This principle was well articulated by Lord Widgery CJ in R versus Peterkin, ex Soni (1972) Imm AR 253 where the learned judge noted as follows:
“The prerogative orders form the general residual jurisdiction of this court whereby the court supervises the work of inferior tribunals and seeks to correct injustice where no other adequate remedy exists, but both authority and common sense seem to me to demand that the court should not allow its jurisdiction under the prerogative orders to be used merely as an alternative form of appeal when other and adequate jurisdiction exists elsewhere”. (Emphasis added).
18. 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.
19. The same point was emphasised in Chief Constable of North Wales Police versus Evans (supra) where 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.”
20. 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.
21. These authorities remind us that there is a clear distinction between appeal and judicial review and one cannot be substituted for the other. It follows that to the extent that the applicant purportedly instituted judicial review proceedings instead of an appeal, her application is misconceived and an abuse of the process of the court. I so hold and strike out the application with costs. Orders accordingly.
“1. That this Application be certified urgent and the same be heard ex-parte in the first instance.
2. That this Honourable court be pleased to grant leave to the applicant to file documents in support of paragraph 6 and 7 of the statement of facts hereof.
3. That this Honourable Court do issue an order of Mandamus compelling the Respondent to supply the Applicant with a copy of the judgment delivered on 16ᵗʰ October 2023 in the Advocates Disciplinary Tribunal Cause No. 20 of 2022 In the Matter of a Complaint by William K. Gitau and Arcoverde (K) Limited Against Mary Waithiegeni Chege, Advocate on 10ᵗʰ June, 2024
4. That this Honourable Court do issue an order of Certiorari quashing the decision of the Respondent made on 16ᵗʰ October 2023 and letter dated 23ʳᵈ May 2024 compelling the Exparte Applicant to appear before it for mitigation and sentencing in the Advocates Disciplinary Tribunal Cause No. 20 of 2022 In The Matter of a Complaint by William K. Gitau and Arcoverde (K) Limited Against Mary Waithiegeni Chege, Advocate on 10ᵗʰ June, 2024.
5. That this Honourable Court do issue an order prohibiting the Respondent from proceeding with mitigation and sentencing of the Ex•parte Applicant in the Advocates Disciplinary Tribunal Cause No. 20 of 2022 In The Matter of a Complaint by William K. Gitau and Arcoverde (K) Limited Against Marv Waithiegeni Chege, Advocate as may be scheduled.
6. That this Honourable.Court be pleased to stay any further proceedings in the Advocates Disciplinary Tribunal Cause No. 20 of 2022 In The Matter of a Complaint bv William K. Gitau and Arcoverde (K) Limited agaimt Mary Waithiegeni Chege, Advocate pending hearing and determination of this motion.
7. That this Honourable Court be pleased to stay execution of the judgment delivered on 16ᵗʰ October 2023 in the Advocates Disciplinary Tribu11a/ Cause No. 20 0(2022 In The Matter of a Complaint by William K Gitau and Arcoverde (K) Limited against Marv Waithiegeni Chege, Advocate pending hearing and determination of this motion.
8. That this Honourable Court be pleased to give all necessary directions.”
2. The application is based on a statutory statement dated 6 June 2024 and an affidavit sworn on even date by Ms. Mary Wauthiegeni Chege, verifying the facts relied upon. According to the applicant, a complaint against her was filed with the respondent, being Advocates Disciplinary Tribunal Cause No. 20 of 2022; In the Matter of a complaint by William K. Gitau and Arcoverde (K) Limited Against Mary Waithiegeni Chege, Advocate. The applicant sought the following orders:-
“(a) Mary Waithiegeni Chege of admission number Pl05/4618/0l be suspended from practicing as an Advocate for a period to be determined by this Honourable Tribunal;
(b)Mary Waithiegeni Chege of admission number Pl05/4618/0l be and is hereby fined to the tune of the maximum sums prescribed under section 60(4) of the Advocates Act;
(c)Mary Waithiegeni Chege of admission number Pl05/4618/0J be and is hereby ordered and directed to release to me unconditionally, the seven (7) original leases, signed transfers and consents relating to seven plots situate in a property known as Kijani (precinct) 2B being part of LR No. 28867/1 (as more particularly delineated on the plan registered on 15th June 2017 in the Registry of Documents as Volume DJ, Folio 136/2362 File MMXVII);
(d) Costs of these proceedings be borne by Mary Chege; and
(e) In the alternative, Mary Waithiegeni Chege of acbnission number Pl05/4618/0J be struck off the role of Advocates of the High Court of Kenya.”
3. Parties filed their pleadings and a judgment date set by the tribunal. It was eventually rendered on 16 October 2023. According to this judgment, the applicant was was convicted. The applicant is aggrieved that the respondent only read out the final orders and, therefore, she is unaware of the reasons for the judgment.
4. Although the applicant sought to have a copy of the judgment, she has never been given the copy and that, as recently as recently as 4 June 2024, the respondent informed the applicant that the judgment was not ready yet the case was scheduled to come up for mitigation on 10 June 2024.
5. In response to the application, the respondent filed a preliminary objection dated 19 June 2024 on the grounds that:
“1.The application offends the provisions of Order 53 Rule 2 of the Civil Procedure Rules, 2010 and Section 9 of the Law Reform Act, Cap 26 Laws of Kenya which stipulate that Judicial Review proceedings must be commenced within 6 months from the date when the ground for the application arose. The application is therefore time-barred.
2.The application is fatally defective, hopelessly misconceived, misleading and is bad law under the doctrine of exhaustion as the ex-parte Applicant has violated the laid down procedure in instituting this suit.”
6. According to the respondent, section 9(3) of the Law Reform Act and Order 53 rule 2 of the Civil Procedure Rules require the applicant to have made the application within six months after the date of the impugned decision yet the applicant’s application was filed after eight months from the material date. In support of its arguments, the respondent cited Republic v Deputy County Commissioner, Makueni & 3 others; Matolo (Ex parte Applicant) (Environment and Land Judicial Review Case E021 of 2022) [2024] KEELC 1371 (KLR) (6 March 2024) (Judgment) where the court observed that the provisions relating to timelines within which to institute judicial review proceedings are couched in mandatory terms. Thus, as was held in Wilson Osolo v John Ojiambo Ochola & Another [1996] eKLR, the court does not have jurisdiction to extend time for instituting such proceedings.
7. In her rebuttal, the applicant urged that her application seeks various prerogative orders being an order of mandamus, certiorari and prohibition. Section 9(3) of the Law Reform Act and Order 53 rule 2, according to the applicant, only applies to an order of certiorari and that the reliefs of prohibition and mandamus are not subject to any limitation of time.
8. The applicant relied on Republic v Ministry of Lands and Urban Development & 4 others; Jeremiah Otieno (Interested Party)Ex parte Osoro Kennedy [2019] eKLR where the court held that “under Article 47 administrative processes are more of a constitutional discipline hence relief for administrative grievances is no longer left to the realm of common law but is to be measured against the standards established by the constitution”.
9. In any event, she urged, section 11 of the Fair Administrative Action Act, 2015 is to the effect that this Honourable Court has the power to grant any order that is just and equitable, including the power to extend time for applying for the quashing of the respondent’s decision.
10. As much as the parties have focused their attention on when the application for judicial review ought to have been filed, a more fundamental question ought to be whether, in the first place, it was open to the applicant to file an application for judicial review, as a way of challenging the respondent’s decision. This is a pertinent question because according to section 62 of the Advocates Act, cap. 16, a person dissatisfied with the respondent’s decision and who wishes to challenge it can only do so by way of an appeal and not through a judicial review application. This section reads as follows:
62. Appeal against order of Tribunal
(1) Any advocate aggrieved by order of the Tribunal made under section 60 may, within fourteen days after the receipt by him of the notice to be given to him pursuant to section 61(2), appeal against such order to the Court by giving notice of appeal to the Registrar, and shall file with the Registrar a memorandum setting out his grounds of appeal within thirty days after giving by him of such notice of appeal.
(2) The Court shall set down for hearing any appeal filed under subsection (1) and shall give to the Council of the Society and to the advocate not less than twenty-one days’ notice of the date of hearing.
(3) An appeal under this section shall not suspend the effect or stay the execution of the order appealed against notwithstanding that the order is not a final order. (Emphasis added).
11. It is not in dispute that the impugned judgment was made under section 60 of the Advocates Act and, that being the case, section 60 (1) states, in no uncertain terms, the nature and form the challenge of the impugned decision takes. It has to be an appeal and which, for the avoidance of doubt, must be filed by way of a memorandum of appeal in which the appellant sets out the grounds of appeal.
12. To discount any notion of a possibility of taking any other proceedings against the respondent’s decision than an appeal, section 64 of the Advocates Act goes further to state that once an appeal has been filed, the court will consider, not only the memorandum of appeal but also the evidence taken at the Tribunal. The section reads as follows:
64. Powers of Court
The Court, after considering the evidence taken by the Tribunal, the report of the Tribunal and the memorandum of appeal, and having heard the parties, and after taking any further evidence, if it thinks fit so to do, may—
(a) refer the report back to the Tribunal with directions for its findings on any specified point; or
(b) confirm, set aside or vary any order made by the Tribunal or substitute therefor such order as it may think fit;
and may also make such order as to the payment by any person of costs, or otherwise in relation to the appeal, as it may think fit.
13. Thus, it is an appeal rather than an application for judicial review that ought to be filed against decision of the respondent. It goes without saying that an appeal is not the same as judicial review and that the court cannot exercise its judicial review authority by assuming appellate jurisdiction.
14. And where the statute expressly provides for an appeal to this Honourable Court as a means of challenging a decision of a public body authority, person or tribunal, it is not open to an applicant, in those circumstances, to invoke the judicial review jurisdiction of the court.
15. This question has been discussed by David Foulkes in his book Foulkes Administrative Law, 7th Edition. Citing the case of Customs and Excise Commissioners versus J.H. Corbitt (Numismatists) Ltd (1981) AC 22, (1980) 2 2ALL ER 72, the learned author noted as follows:
“It is to be noted that an appeal lies from, whether to an appellate tribunal or to a court of law, only when and to the extent that statute so provides, and the powers of the appeal body to review, reconsider etc. the decision of the tribunal likewise depend on the statute.
To be contrasted with appeal is judicial review. The decision of tribunals, as bodies exercising judicial functions, have always been subject to review by the courts (that is, to judicial review) by means of the order of certiorari. This enables the court to quash a decision on certain grounds. Whereas appeal lies only when and to the extent that statute provides, the court’s common law power of judicial review exists unless it is take away or limited by statute. Thus where no appeal to the court is provided by statute the only possible challenge in the courts is by way of judicial review…” (at p.150-151). (Emphasis added).
16. No doubt this was the principle applied by Lord Wright in General Medical Council versus Spackman (1943) AC627, at 640 where he stated as follows:
“I have observed that Parliament has not provided for any appeal from the decisions of the council. The only control of the court to which the council is subject (apart from proceedings by way of mandamus) is the power which the court may exercise by way of certiorari. Certiorari is not an appellate power.”
17. Thus, judicial review only sets in if parliament has not, by statute, provided for an appeal. By its very nature, judicial review comes into play where there is no other alternative form of remedy that is as convenient, beneficial and effective. This principle was well articulated by Lord Widgery CJ in R versus Peterkin, ex Soni (1972) Imm AR 253 where the learned judge noted as follows:
“The prerogative orders form the general residual jurisdiction of this court whereby the court supervises the work of inferior tribunals and seeks to correct injustice where no other adequate remedy exists, but both authority and common sense seem to me to demand that the court should not allow its jurisdiction under the prerogative orders to be used merely as an alternative form of appeal when other and adequate jurisdiction exists elsewhere”. (Emphasis added).
18. 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.
19. The same point was emphasised in Chief Constable of North Wales Police versus Evans (supra) where 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.”
20. 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.
21. These authorities remind us that there is a clear distinction between appeal and judicial review and one cannot be substituted for the other. It follows that to the extent that the applicant purportedly instituted judicial review proceedings instead of an appeal, her application is misconceived and an abuse of the process of the court. I so hold and strike out the application with costs. Orders accordingly.