The application before court is stated to be brought under Article 23 of the Constitution of Kenya; sections 8 and 9 of the Law Reform Act Cap. 26 and Order 53 Rule 3(1) of the Civil Procedure Rules. It seeks judicial review orders whose prayers have been couched as follows:
“2. An order of certiorari to remove into this Honourable Court and quash the decision of the 1st respondent of 4th September 2020 seeking to form and establish two (2) Nairobi branches of the Institute of Human Resource Management.
3. An order of prohibition directed at the 1st respondent to prohibit the 1st respondent from proceeding to establish the two (2) formed Nairobi branches of the Institute of Human Resource Management.
4. An order of prohibition directed at the 1st respondent to prohibit the 1st respondent from proceeding to conduct the intended branch elections of the Institute, including the irregularly formed and established two (2) Nairobi branches of the Institute of Human Resource Management, that is, Nairobi South West and Nairobi North East branches.”
The application is based on a statutory statement dated 21 September 2020 and an affidavit sworn by the applicant on even date.
The applicant swears that he is a member of the Institute of Human Resource Management, ( also referred to in this judgment as “the Institute”), the 1st respondent in this motion, which is registered in accordance with the Human Resource Management Professionals Act, No. 52 of 2012 (hereinafter “the Act”) and that he is also the interim chairman of the Institute of Human Resource Management, Nairobi Chapter.
Prior to the enactment of the Act, human resource management practitioners domiciled and working in Nairobi had no representation in the management of the Institute and therefore they agitated for a branch in Nairobi.
On 17 December 2019, the Institute’s chairman hosted a chairman’s forum at the Kenyatta International Convention Centre where it was resolved that a Nairobi branch of the Institute will be established. Indeed, the decision was taken after human rights practitioners in Nairobi who attended the meeting unanimously agreed that the branch be established to consider their welfare and practice.
On 7 May apparently of the year 2020, the Institute’s executive director communicated to the membership of the Institute that the Institute’s council had met on 24 April 2020 and was working on the modalities of establishing the Nairobi branch and that the members would be notified on these modalities in due course.
On 4 September 2020, the Institute’s chairman informed the members that the Institute’s Council had resolved to create two branches instead of one; the branches to be created in Nairobi were Nairobi South West and Nairobi North East. The creation of two branches instead of the one that had been previously agreed upon was without consultation of the members of the Institute.
There was also a further communication on 7 September 2020 to the effect that branch elections would be held on 28 September 2020 and therefore those who were interested in the elective positions in the branches were notified to present their names for nomination for election into those positions.
According to the applicant, the decision to establish the two branches in Nairobi was illegal and against corporate principles of inclusivity, consultation and public participation. The basis of creating two branches instead of one was not clear to the members.
Although the applicant lodged a petition against the decision to create the two branches, the Institute ignored it and the returning officer in the scheduled elections declared the nominees in the elections on 18 September 2020.
The application was opposed by the 1st respondent. It filed a replying affidavit sworn on its behalf by Irene Kimacia, the 1st respondent’s Acting Executive Director. The affidavit was sworn on 20 December 2020.
According to Kimacia, the applicant has no authority to swear an affidavit on behalf of any section of the Institute’s membership and indeed the so-called Nairobi Chapter of the Institute which the applicant purports to chair does not exist.
She has sworn that the Institute has the mandate of the Act to establish offices at any place in Kenya.
In a special Council meeting held on 13 December 2019, it was agreed that a formal paper on establishment of Nairobi branches was to be presented by the secretariat at the next council meeting for consideration. In its meeting held on 6 March 2020, the Institute’s council approved the proposal to establish the branch and directed that the right procedures for this exercise, including collection of the requisite signatures from the members, would be followed.
On 24 April 2020, the council held a meeting and noted that the collection of the required signatures for the establishment of the Nairobi branch was ongoing. It was also agreed that the secretariat would consider and make recommendations to the council on the establishment of zones in Nairobi and that a proposal would be reviewed byWycliffe Osoro and Catherine Mwangi as council members of the institute appointed by the Cabinet Secretary representing the Nairobi region at the council.
On 7 May 2020 the council held a meeting and discussed, amongst other issues, the establishment of the Nairobi branches after the Secretariat shared its proposal on the establishment of zones in Nairobi.
Again, on 26 May 2020 a report detailing the proposal of the demarcation and formation of Nairobi branches was tabled and reviewed. Considering the higher membership population and their spread across Nairobi city County, it was recommended that the Nairobi County be divided into four branches; the proposed branches were as follows:
a. Nairobi South West branch
b. Nairobi North branch
c. Nairobi East branch
d. Central Nairobi branch
Upon deliberations on the report, the council unanimously resolved to approve the establishment of the Nairobi North East and Nairobi Southwest branches to serve Nairobi and to consider progressively splitting the two branches further in future.
The Institute sought members’ views on establishment of the branches and their demarcation and obtained their approval through a survey that was conducted on a virtual platform following the guidelines on gatherings issued by the Ministry of Health in the wake of the Covid- 19 pandemic.
The respondent’s council then appointed an independent electoral body to conduct the elections of branch officials. The elections of the Nairobi branches were conducted concurrently with the elections of other branches in Mombasa, Nyanza and South Rift. The elections were conducted in accordance with the Institute’s election rules and regulations.
The elected officials have since assumed office and are currently performing their duties and responsibilities in accordance with the respective formal appointment letters. The branch officials in Nairobi Southwest and Nairobi North-East branches serve, not have necessarily as a result of their election but they have also to be formally appointed by the Institute and issued appointment letters accordingly. For this reason, it has been urged that they cannot be removed from office because, having been formally employed, any dispute on their employment can only be resolved by the Employment and Labour Relations Court which only has the jurisdiction to resolve such disputes.
Kimacia denied that there was any decision made by the 1st respondent on 4 September 2020 capable of being quashed by this Honourable Court. According to her, the decision to form and establish the two branches in Nairobi City County was made on 26 May 2020 and this decision was communicated to all the institute’s members including the applicant. The creation of the two Nairobi branches followed the same process that was adopted in the creation of other branches in the country.
The Institute is mandated to create branches as long as the minimum number of the members to be served by any one particular branch is not less than thirty.
The second respondent did not file any response to the application.
I have had the opportunity to consider the written submissions filed by the learned counsel both for the applicant and the 1st respondent. Two preliminary issues have been raised by the 1st respondent and which, by their very nature, must be determined in limine.
The first of these questions is a matter of form of the motion. The bone of contention is that the applicant has instituted the motion in his own name rather than the name of the republic. The law on this question is that while the applicant may seek leave in his own name, the substantive motion can only be instituted in the name of the republic. The application for leave in this case was rightly entitled:
“Stephen Amadalo Versus Institute of Human Resources & The Honourable Attorney General.”
And once leave has been granted, the title of the motion should have been:
“Republic Versus Institute of Human Resources & The Honourable Attorney General; ex parte: Stephen Amadalo.”
The reason for this form of title was explained in the case of Farmers Bus & Others versus Transport Licensing Appeal Tribunal (1959) E.A 779 where Forbes, Ag. P quoted Sir Newman Worley, P. in Mohamed Ahmed Versus Republic (1957) E.A 523; in this case the learned judge stated at p. 524 as follows:
“…Prerogative orders, like the old prerogative writs, are issued in the name of the crown at the instance of the applicant and are directed to the person or persons who are to comply therewith. Applications for such orders must be intituled and served accordingly.” (at p.780).
But will a suit fail if it is not properly intituled? No, it would not.
In Farmers Bus & Others versus Transport Licensing Appeal Tribunal case (supra) the Court of Appeal noted the error but allowed the appellant to amend the notice of appeal and other pleadings to correct that error and intitule those documents correctly. And in Mohamed Ahmed Versus Republic (supra) the court proceeded with the Appeal without the amendment despite the error because the respondent did not take objection. In this latter case, the circumstances were slightly different; the republic was named as the respondent though it ought to have been the appellant.
This approach of sustaining a suit rather than striking out sits well with Article 159 (2)(d) of the Constitution which prods courts to administer justice without undue regard to procedural technicalities.
Though the Civil Procedure Rules are very rarely invoked to guide judicial review proceedings (except, of course, Order 53), Order 1 Rule 9 would be consistent with Article 159 of the Constitution and also the position that has been adopted in the two decisions I have made reference to. That rule reads as follows:
No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
So, to answer the respondent, indeed the applicant has erred in the intitulement of the motion but it is not the kind of error that would defeat the applicant’s quest to be heard on merits.
The next question is that the application has an earlier date than the date when leave was granted. To be precise, leave was granted on 22 September 2020 but the motion is dated 21 September 2020.
It is apparent from the record that when the applicant filed the chamber summons for leave, he simultaneously filed the substantive motion. Both the summons and the motion were dated 21 September 2020. While granting leave, the court (Mativo, J. as he then was) struck out the motion because it had been filed before leave was granted. The applicant was, however, directed to file the motion within ten days after leave was granted. The motion was indeed filed on 30 September 2020 but it bore, as noted, the date of 21 September 2020.
I am of the humble view that this mistake is nothing more than de minimis. It is a defect which should not go to the root of the application.
The next port of call is to consider the application on its merits.
I must start by saying that in applications of this nature, the immediate and, I dare say, the only point of entry for interrogation by a judicial review court of the impugned decision or the respondent’s exercise of power is the grounds of judicial review. That is, whether impugned decision or exercise of power is vitiated on any of the grounds of judicial review.
According to Order 53 Rule 1(2) of the Civil Procedure Rules, the statement accompanying the application must contain, among other things, the grounds upon which the application is made. 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. (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 and his prediction that the principle of proportionality as a further ground for judicial review has, more or less, come to pass.
In an application for judicial review the applicant must come out, in clear and unambiguous terms, on which of these grounds his application is based. Of course if he is relying on all of them he must categorically say so. A rehash of the depositions in the affidavit verifying the facts relied upon as grounds for judicial review without specifying in precise terms the head or heads of grounds of judicial review for which the facts are in support of is unacceptable and fatal to the application for judicial review.
This position has been aptly captured by 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 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.
It is not for the courts to speculate which of these grounds the applicant for judicial review the applicant has in mind. The grounds must be specifically and precisely stated, if not for anything else, to assist the court determine whether leave should be granted, and if it has been granted, to determine whether the impugned decision or exercise of power is tainted with any of these grounds. The grounds would also serve to put the respondent on notice of the grounds he has to defend himself against. He should not be ambushed at the hearing of the applicant’s application.
I suppose it is partly for this reason that Order 53 Rule 4(1) is categorical that no grounds should be relied upon except those specified in the statement accompanying the application for leave. Thus, if grounds have not been set out clearly in the statement, there will be nothing to which an applicant for judicial review can be held to account. That is, the court will not be in a position to tell which of the grounds of judicial review the applicant is relying upon and, for this reason, to which grounds he will be restricted and not venture into other ground or grounds not specified in the statement accompanying the statement for leave.
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.
The applicant’s application would fall into this category of applications because all he has done is to reproduce the affidavit verifying the facts relied upon, word for word, and presented the bare depositions as grounds for judicial review. In the words Michael Fordham (supra), the applicant has ‘thrown everything’ to court and thereby effectively asked it to make up its mind and come to the conclusion the grounds of judicial review these depositions or facts would comprise. This, the court cannot do; if I was to do that, I would not only be engaging in a speculation exercise but that approach, by itself, would be prejudicial to the respondents.
So much for the grounds.
Assuming the applicant had set out the grounds, I doubt his application would have succeeded. I say so because, as far as the order for certiorari is concerned, the 1st respondent has disputed the allegation that any decision was made on 4 September 2020 in terms expressed by the applicant. The prayer for the order for certiorari reads as follows:
“An order of certiorari to remove into this Honourable Court and quash the decision of the 1st respondent of 4th September 2020 seeking to form and establish two (2) Nairobi branches of the Institute of Human Resource Management.”
The purported decision has been exhibited to the affidavit verifying the facts relied on and marked as “SAM-4”. It is headed, ‘statement from the national chairman’. That statement reads, in part, as follows:
“… In our endeavour to strengthen the Institute’s governance structures the Council has established three (3) new branches that is; Nairobi South West, Nairobi North East & Trans-West (Transnzoia & Westpokot) The three shall conduct elections alongside South Rift (Kericho), Mombasa, Nyanza and North Eastern was tenure has ended.”(Emphasis added).
This statement was circulated to members of the respondent via email on 4 September 2020.
A plain reading of this statement shows that the decision to create branches that the applicant has qualms with had been made earlier and the statement was simply communicating that decision. So that, the quashing of this statement, without touching the decision being communicated to members would be inconsequential. The decision would remain intact and the order for certiorari would be as good as futile.
As a matter of fact, Irene Kimacia, in her affidavit deposed as follows with respect to the date when the decision to create the branches was made:
“13. That in a further council meeting of 26th of May, 2020, a report detailing the proposal of the demarcation and formation of Nairobi branches was tabled, reviewed and it was noted that in consideration of high membership population and their spread across the Nairobi City County, it was recommended that the Nairobi County be portioned into four (4) branches as follows:
a. Nairobi South West
b. Nairobi North branch
c. Nairobi East branch
d. Central Nairobi branch
14. That upon deliberations of the said report, the Council unanimously resolved to approve the establishment of the Nairobi North East and Nairobi South West branches to serve Nairobi and to consider progressively splitting the two branches further in future.
20. a. There is no decision that was made by the 1st respondent on 4 September 2020 capable of being quashed by this court.”
These depositions have not been controverted and, therefore, this Honourable Court is entitled to proceed on the assumption that they represent the true state of affairs. That being the case, the decision that ought to have been targeted for a quashing order is the decision made by the respondent’s council on 26 May 2020 and not the statement informing all and sundry that the decision had been made.
As far as the prohibition orders are concerned, the applicant has admitted in his affidavit and pleadings that at the time he filed the application for these orders, what he sought to prevent had already taken place.
The prayers for these orders were captured as follows:
“3. An order of prohibition directed at the 1st respondent to prohibit the 1st respondent from proceeding to establish the two (2) formed Nairobi branches of the Institute of Human Resource Management.
4. An order of prohibition directed at the 1st respondent to prohibit the 1st respondent from proceeding to conduct the intended branch elections of the Institute, including the irregularly formed and established two (2) Nairobi branches of the Institute of Human Resource Management, that is, Nairobi South West and Nairobi North East branches.”
It has already been demonstrated that the branches had been established in May 2020. The application was filed on 30 September 2020, four months after the event.
As far as the elections are concerned, the applicant has admitted that they had been conducted at the time he filed his application. In the affidavit verifying the facts relied upon, he swore as follows:
“20. That despite all these concerns, the said returning officer, Trunex consulting continued to receive nominations and on 18th September 2020 proceeded to declare winners of the nominations/elections.
22. That in total disregard of the petition and plight of its members domiciled in Nairobi, the 1st respondent proceeded with the process.
23. That in the light of these developments, it is our prayer that the purported elections be annulled and the cost of conducting a sham election be borne by the 1st respondent.”
The order of prohibition cannot apply in these circumstances because it is trite that this particular order of judicial review is meant to deter rather than undo an unlawful action. It scope was explained was explained by the Court of Appeal in Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge Civil Appeal No. 266 of 1996; in this case the court noted as follows:
“Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision…Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings…
To the extent that the applicant is seeking for an order of prohibition to impugn what has already occurred, the application is misconceived and fatally defective. For the reasons I have given, I would dismiss the applicant’s application. However, I make no order as to costs. It is so ordered.