The applicant’s application is a motion dated 17 November 2022 filed under Article 22(3), 47 & 50 of the Constitution; section 7,8 and 9 of the Fair Administrative Action Act, 2015, Section 175 of the Public Procurement and Asset Disposal Act, Order 51 Rules 1 and 3 of the Civil Procedure Rules. The application seeks the orders of certiorari, prohibition and mandamus.
The prayers for these orders have been couched as follows:
“3. That an order of certiorari be directed to the 1st respondent, by itself, its servants and/or agents or any other officer acting under its authority to bring to the court for the purpose of quashing the decision made by it dated 2nd November, 2022 dismissing the applicant’s application for review of tender number KAA/RT/OT/MBD/0210/2021-2022 which tender the 2nd respondent awarded the 1st, 2nd and 3rd interested parties.
4. That an order of prohibition prohibiting the 2nd respondent and or its agents and servants from entering or signing any contract with the 1st, 2nd and 3rd interested parties or any other 3rd party concerning said KAA/RT/OT/MBD/0210/2021-2022.
5. An order of mandamus compelling the 2nd respondent herein carrying out a fresh evaluation of the tenders submitted to it in the said tender number KAA/RT/OT/MBD/0210/2021-2022
The application is supported by a statutory statement dated 17 November 2022 and an affidavit sworn by William Ngoni Wanyonyi who has introduced himself in that affidavit as the director of the applicant.
The applicant’s case is that on 22 June 2022, it submitted a bid in response to an invitation to bid placed on the 2nd respondents website on 23 May 2022. The bids were in respect of “restricted tender for development and management of Lot 1 Kenya Tea and Coffee Shop, Lot 2 Gold and Jewellery Shop, Lot 3 Watch and Clock Store, Lot 4 Electronics and Technology Store, Lot 5 Branded and Beauty Store, Lot 6 Toy, Gift Souvenir Store.”
On 3rd October, 2022, the 2nd respondent informed the applicant that its bid was unsuccessful and that the tender had been awarded to the 1st, 2nd and 3rd respondents. The reasons given for the applicant’s failed bid were that the applicant provided one tender security applied to three lots which was contrary to the requirement in the tender document relating to provision of security. The applicant is also said to failed to provide a letter from the specific brand manufactures confirming that it was the only genuine and exclusive distributor of its brands in East Africa.
The applicant was aggrieved by this decision and therefore, in exercise of its right under section 167(1) of the Public Procurement and Asset Disposal Act, 2015, it sought for review of the 2nd respondent’s decision. The request for review was filed on 12 October, 2022 as Application No. 87 of 2022.
The application was, however, dismissed. The 2nd respondent’s decision was rendered on 2 November 2022. It is this decision that the applicant is aggrieved by hence the instant application.
The grounds upon which the decision is impugned and which would ordinarily be the grounds for judicial review have not been set out in any clear or precise terms. According to order 53 Rue 1(2), it is in the statement accompanying the application for leave that that the grounds for judicial review are set out. That rule reads as follows:
(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.
In this application, the applicant has, of course, not sought for leave to file the substantive motion but to the extent that it has filed a statement which, for all intents and purposes, is the statement contemplated under Order 53 Rule 1(2), it is mandatory that it must contain grounds on which relief is sought.
The applicant has, instead, largely rehashed the depositions in the affidavit in support of the application and presented them as grounds for judicial review. Such bare depositions are of little value as far as grounds for judicial review are concerned since they merely chronicle the events that comprised the procurement process, ultimately culminating in the impugned decision.
As I will demonstrate in due course, this practice of throwing everything to court for it to make out whether the application is capable of succeeding on any of the acclaimed grounds for judicial review has not only been deprecated but it is also fatal to an application for judicial review.
I will turn to this question at a later stage in this judgment.
The respondent opposed the application and filed a replying affidavit to that end. However, like the applicant’s affidavit, it has also reiterated the events leading to the application for review by the applicant and subsequently, its impugned decision.
The respondent has also defended its decision. In particular, it has contended that although the applicant has alleged that the tender document was skewed, the applicant participated in the tender process and only rose against it after its bid was found non-responsive. In any event, the applicant’s bid was established to have failed to meet the mandatory requirements of the tender documents.
At the hearing of the applicant’s application, I asked the applicant’s counsel to address me on the issue of leave and particularly whether the applicant could proceed, as it did, and file a substantive motion for judicial review orders without first applying for leave to file such a motion.
It was the learned counsel’s submission that leave was not necessary because it is only under sections 8 and 9 of the Law Reform Act, cap. 26 that leave is required. The applicant’s application, on the other hand, was based on sections 7, 8 and 9 of the Fair Administrative Act, 2015. In support of this submission, the learned counsel cited this Honourable Court’s decision in Constitutional Petition No. 337 of 2018 Felix Kiprono Matagei versus The Honourable Attorney General & Another (2021) eKLR and further submitted that according to Article 24 of the Constitution, a party is not limited as to how he may approach the court. Even then, counsel admitted that the rationale behind the requirement for leave is to do away with vexatious and frivolous applications.
The learned counsel for the respondent, on the other hand, submitted that leave is a mandatory requirement under sections 8 and 9 of the Law Reform Act and Order 53 Rule 1 (1) and (2) of the Civil Procedure Rules. Counsel submitted that the decision in Felix Kiprono Matagei versus The Honourable Attorney General & Another to which the applicant’s counsel referred acknowledged that these provisions of the Civil Procedure still applied notwithstanding the the Fair Administrative Action Act.
I chose to address this question of leave in limine because if I came to the conclusion that leave is necessary, there would no need to go any further and determine the applicant’s application on merits because, strictly speaking, there would no application before court that would warrant such a determination.
I must start by saying that this is not the first time this question has arisen before me. I have addressed it on at least two previous occasions in Judicial review application No. E069 of 2021; Republic versus Retirement Benefits Authority, ex parte Alex Anyona Momanyi and 6 Others and in Judicial Review Application No. E087 of 2021 Republic versus Public Procurement Administrative Review Board & Others ex parte AA Insurance Company Limited.
In these two decisions I held that the starting point in interrogation of the question whether leave is still necessary despite the enactment of the Fair Administrative Act would be Order 53 (1) of the Civil Procedure Rules; this rule states as follows:
1. (1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.
This rule leaves no doubt that grant of leave is a precondition to filing of a substantive motion for the prerogative orders of mandamus, prohibition or certiorari; without such a leave the substantive application cannot be entertained.
The need for leave has been explained in several decisions by the courts in England; these English decisions are relevant in our jurisdiction by virtue of section 8 (2) of the Law Reform Act, cap. 26 which provides the basis upon which the jurisdiction to grant judicial review reliefs of mandamus, prohibition or certiorari is exercised. That section reads as follows:
8. (2) In any case in which the High Court in England is, by virtue of the provisions of section 7 of the Administration of Justice (Miscellaneous Provisions) Act, 1938, (1 and 2, Geo. 6, c. 63) of the United Kingdom empowered to make an order of mandamus, prohibition or certiorari, the High Court shall have power to make a like order.
In Cocks v Thanet District Council (1983) 2 AC 286 at page 294F Lord Bridge said that leave is one of the safeguards built into the order 53 to protect from harassment of public authorities on whom Parliament has imposed a duty to make public law decisions. And in O’Reilly v Mackman (1983)2 AC 237 Lord Diplock said at p. 281 A-C that the requirement of a prior application for leave to be supported by full and candid affidavits verifying the facts relied on is an important safeguard against groundless or unmeritorious claims that a particular decision is a nullity.
The leave stage is a procedure which provides an expeditious method according to which the court sifts out cases with no chance of success at a relatively little cost to the applicant and no cost to any prospective respondent. The requirement for leave has always provided procedural limitations which, in turn, provide a necessary protection to public authorities against claims which it is not in the public interest for the courts to entertain. It is one of the safeguards imposed in the public interest in respect of groundless, unmeritorious or tardy attacks on the validity of decisions made by public authorities in the field of public law. (see Foulkes on Administrative Law, 7th Edition by David Foulkes at page 333).
Lord Diplock emphasised this point in O’Reilly versus versus Mackman (1983) 2 AC 237 at 285 where he noted:
“It would in my view as a general rule be contrary to public policy and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law, to proceed by way of an ordinary action and by this means evade the provisions of order 53for the protection of such authorities.”
What this implies is that in the absence of the requirement for leave, courts will no longer be able to scrutinise intended suits against public authorities and, in the process, leaving them exposed to what has been described as ‘groundless, unmeritorious or tardy attacks on the validity of their decisions’.
In IRC v. National Federation of Self-Employed and Small Businesses Ltd (1982) AC 617 Lord Diplock explained the need for leave this way:
“Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”
The two purposes identified here are to save court’s time and so as not to leave public authorities in a state of uncertainty as to whether they can safely proceed. It is an essential protection against abuse of legal process. Woolf J has referred to the need for leave as “the unique statutory means by which the court can protect itself against abuse of judicial review.” (R v Secretary of State for the Environment, ex p Greater London Council (1985) Times, 30 December).
These authorities are clear that the requirement for leave when seeking to invoke Judicial Review jurisdiction serves a specific purpose; it is not a pastime exercise and neither is it an option that a litigant seeking judicial review remedies may choose to comply with at his convenience; it is a mandatory procedural step without which the court would not be able to exercise the discretion with which it is clothed either to allow or decline the institution of the substantive suit for judicial review reliefs.
I am minded that among the various provisions of the law that the applicant has invoked in its quest for reliefs sought, Section 8(2) of the Law Reform Act and Order 53(1) of the Civil Procedure Rules are not among them. But the omission to invoke these provisions of the law does not necessarily imply that the applicant is thereby exempted from complying with the procedure for invoking the judicial review jurisdiction of this Honourable Court. As long as an applicant is seeking judicial review reliefs, irrespective of whether they are the traditional reliefs of mandamus, certiorari and prohibition or the expanded ones under section 11 of the Fair Administrative Actions Act, No. 4 of 2015, he is bound by the procedure for filing the application for such reliefs.
I am also minded that the applicant has invoked various provisions of the Fair Administrative Action Act, 2015, in particular, sections 7, 8 and 9 none of which provide for application for leave as the preliminary step in lodging the application for judicial review.
However, none of those provisions expressly oust the application of Order 53 (1) of the Civil Procedure Rules in applications for judicial review. The specific provision in the Fair Administrative Actions Act relating to procedure is section 9 of the Act; it provides as follows:
9. Procedure for judicial review.
(1) Subject to subsection (2), a person who is aggrieved by an administrative
action may, without unreasonable delay, apply for judicial review of any
administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under anyother written law are first exhausted.
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
(4) Notwithstanding subsection (3), the High Court or a subordinate Court
may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
(5) A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.
The Act does not say how the application is to be made and, in my humble view, this is a deliberate omission because the procedure for invoking judicial review jurisdiction remains Order 53 of the Civil Procedure Rules.
One very important point to remember is that the common law principles upon which the requirement for leave was grounded still subsist today and are as much relevant today as they were before. I suppose it is for this reason that section 12 of the Fair Administrative Actions Act is express that the Act is complementary to and not a substitute of the general principles of common law; that section reads as follows:
12. Principles of common law and rules of natural justice.
This Act is in addition to and not in derogation from the general principles of common law and the rules of natural justice.
Section 14 on transition provisions affirms the position that the procedure adopted in judicial review applications before the coming into force of the Fair Administrative Actions Act has not been done away with. That section states 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. (Emphasis added)
Although section 14 (2) (a) suggests that the practice and procedure obtaining before the enactment of the Act may only apply in circumstances where it is impracticable to apply the provisions of the Act, the Act does not invalidate the practice and procedure preceding the enactment of the Act.
In any event, it is a legitimate argument that as long as the Act does not provide the procedure for the making of applications for judicial review, then the practice and procedure in making such applications before the enactment of the Act are to be followed.
What may appear to be a gap in matters procedure will, perhaps, be filled once the regulations or practice directions contemplated under section 13 and 14 (2) have been made.
Section 13 says:
13. Regulations.
(1) The Cabinet Secretary may, in consultation with the Commission on
Administrative Justice, make regulations for the better carrying out of the provisions of this Act.
(2) Regulations made under subsection (5) shall, before publication in the
Gazette, be approved by Parliament.
In the absence of the regulations or practice directions, it would be premature to assume that the requirement of leave has been rendered unnecessary. In the current scheme of things, there is no legal basis to institute judicial review proceedings without leave of the court. It would, in the words of section 14(2) (a) of the Fair Administrative Actions Act, be impracticable to invoke the jurisdiction of a judicial review court without leave.
In any event, considering the common law principles and rationale behind the requirement for leave which I have adverted to, there is no plausible reason to assume that the regulations or practice directions, once made, will dispense with the need for leave.
One other thing I am inclined to say is, as much as the Fair Administrative Action Act has widened the scope of judicial reliefs, it must always be remembered that the administrative process is not, and cannot be, a succession of justiciable controversies. Public authorities are set up to govern and administer, and if their every act or decision were to be reviewable on unrestricted grounds by an independent judicial body, the business of administration could be brought to a standstill. The prospect of judicial relief cannot be held out to every person whose interests may be affected by administrative action. (see De Smith, Woolf and Jowell, Judicial Review of Administrative Action, at page 3).
In the same book at page 18 it was stated that:
“Yet in public law cases the quest for the lawful exercise of power will take into account both the rights of the person challenging Government action (who may be an individual, a group of individuals or another public body) and the fact that the body challenged is frequently acting on behalf of the public. Neither side should be favoured on the basis of their status as litigants. Yet at the heart of a system of public law should be a recognition of the need to strike the appropriate balance between the legitimate requirements of public authorities that they should be free to perform their proper functions on behalf of the public and the corresponding requirement that they should have due regard for the legitimate rights and interests of the individual and groups of individuals. When performing their functions, public authorities should recognise their responsibility to strike this balance. When this does not happen there needs to be a means of redress.”
It is for this reason that the Court has the discretion to grant or not to grant leave to an applicant to file an application for judicial review. In the absence of this step, public bodies would face a floodgate of judicial review applications and certainly ‘the business of administration would be brought to a standstill.’
I must reiterate that judicial review remedies are discretionary and it is partly for this reason that a judicial review court has been clothed with the discretion to interrogate, at a preliminary stage, the intended application for prerogative orders. It is that stage that, in exercise of its discretion, the judicial review court will weigh between ‘the legitimate requirements of public authorities that they should be free to perform their proper functions on behalf of the public and the corresponding requirement that they should have due regard for the legitimate rights and interests of the individual and groups of individuals.’
If, upon examination of the material before it, the court is persuaded that a case has been made out that, on further interrogation, the legitimate rights and interests of the individual or group of individuals may have been abrogated, it will intervene and exercise its discretion in favour of grant of leave to institute a substantive motion for judicial review reliefs.
It follows that the application for leave is not a mere procedural technicality that can be dispensed with at the whims of either the court or an applicant. It is a material stage in the application for judicial review orders at which the discretion of this Honourable Court is called into question and which, for this very reason, cannot be taken away without an express provision of the law in that regard.
For the reasons I have given, I am not persuaded by the decision in Constitutional Petition No. 337 of 2018 Felix Kiprono Matagei versus The Honourable Attorney General & Another (2021) eKLR, which the applicant’s counsel invoked in his submissions, to the extent that it is suggested that the requirement for leave in applications for judicial review remedies is unwarranted.
Turning to the question of grounds of judicial review, I would once again say it is a recurrent question in this division. It is not uncommon amongst practitioners to reproduce depositions in their clients’ affidavits sworn in support of the facts relied on as grounds upon which their applications of judicial review are based. This, of course, is out of order for grounds of judicial are well spelt out, as will be demonstrated in due course, and it is upon an applicant for judicial review orders to clearly set out which of these acknowledged grounds his application is based. It is not for the court figure out from the depositions made which of these grounds the applicant could be having in mind.
For the avoidance of doubt, Order 53 Rule 1(2) of the civil procedure rules states in mandatory terms that the statement accompanying the application must contain, among other things, the grounds upon which the application is made. It reads as follows:
(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. (Emphasis added).
And Order 53 Rule 4(1) states unambiguously that no grounds should be relied upon except those specified in the statement accompanying the application for leave.
What are these grounds?
The grounds for judicial review were enunciated in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 in which Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:
“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.
By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.
By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.
I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”
These grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. The court will intervene and grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to say that further development of this area of law may yield further grounds on a case by case basis. He suggested that it is in this spirit that the principle of proportionality as a further ground for judicial review has been developed.
While reiterating the importance of stating grounds for judicial review in concise and precise terms Michael Fordham in his book, Judicial Review Handbook, at Paragraph 34.1 states as follows:
“The need to identify and express accurately the possible grounds for judicial review is not simply a matter of analytical nicety. It is one of practical necessity. The provisions of the new order require the accurate identification of (a) potentially applicable grounds and (b) the time at which they arose. Given the frequent presence of multiple targets, the elusive nature of certain grounds, their disarming interrelationship, and the understandable fear of missed opportunity, it is easy to see why public lawyers may feel tempted to ‘throw everything’ including grounds which are dangerously close to the inconceivable. This approach is unlikely to endear them to the court.”
The ‘new order’ referred to in this passage is Order 53 of the Rules of the Supreme Court of England whose provisions are more or less in pari materia with our own Order 53 of the Civil Procedure Rules, 2010. The point is, however, clear that courts will not entertain applications where grounds have not been identified and accurately stated. Stating the grounds in precise terms is not, as it were, a matter of analytical nicety but it is a practical necessity.
Like several other litigants who have fallen short of this mandatory requirement, the applicant in this case thrown everything to court, so to speak, in the hope that the court can make out which of the grounds of judicial review the applicant had in mind. I need not belabour the point save to reiterate that unless the facts presented in the statement as ‘grounds upon which relief is sought’ are tied to particular grounds of judicial review, those facts are inconsequential and the application is as good as a groundless application.
It follows that where the grounds are not stated, the application is fatally defective as, strictly speaking, it has no foundation upon which it is built. If the applicant’s application was properly before court, it would still have failed for this reason.
For the reasons given, I hereby dismiss the applicant’s application except that I make no order as to costs. It is so ordered.
Signed, dated and delivered via CTS on 30 December 2022
Ngaah Jairus
JUDGE