1. The Applicant moved the court via an Application dated 15th day of May, 2024 seeking the following orders:
1) THAT this Honorable Court be pleased to issue an order of certiorari to remove into court and quash the 2nd and 3rdRespondents’ decision of apportionment of the retirement benefits of JAMES OTIENO OGONDA (DECEASED) of including NADIA CLARISSA NAMARA (MINOR) amongst the beneficiaries and/or dependant as distributed vide letters dated 21stOctober 2021 and 18th November 2021.
2) THAT the costs of this Application be provided for.
The Applicants Case;
2. The application is supported by the supporting Affidavit of Winnie Awino Ogutu the widow to James Otieno Ogonda (Deceased).
3. She took out the grant of letters of administration intestate of the estate of her deceased husband in Kisumu Chief Magistrate’s Court Succession Cause No. E742 OF 2021.The 1st Respondent sought to revoke/annul letters of administration of grant issued to the Exparte Applicant therein on grounds that the 1st Respondent’s daughter, NADIA CLARISSA NAMARA (MINOR), was the daughter and a beneficiary to JAMES OTIENO OGONDA (DECEASED).
4. On 21st October 2021 the 2nd Respondent apportioned the retirement benefits to the legal dependants of JAMES OTIENO OGONDA (DECEASED) and apportioned the sum of Kshs. 3,829,691.80 in favour of the NADIA CLARISSA NAMARA (MINOR) who is the daughter of the 1st Respondent and alleged to be the daughter of JAMES OTIENO OGONDA (DECEASED) without any proof of paternity.
5. It is her case that the 2nd Respondent’s decision is an attempt to defraud the rightful beneficiaries/heirs of the estate of the deceased.
6. She is aggrieved that the decisions to apportion the 1st Respondent’s daughter, NADIA CLARISSA NAMARA (MINOR) Five percent (5%) of Retirement Benefits when apportioning and distributing the retirement benefits of the deceased to the dependents without the knowledge and information of the Exparte Applicant is arbitrary.
7. It is her case that before apportioning the 1st Respondent’s daughter, NADIA CLARISSA NAMARA (MINOR) Five percent (5%) of Retirement Benefits the 2nd Respondent allegedly followed due procedure and thus was satisfied that the 1st Respondent’s daughter was and is the daughter of the deceased and yet no documentary evidence was adduced to them in arriving to that conclusion.
8. It is her case that the birth certificate of The 1st Respondent’s daughter, NADIA CLARISSA NAMARA (MINOR) does not show the father of the minor and definitely not the deceased.
9. The 1st Respondent’s daughter, NADIA CLARISSA NAMARA (MINOR) was born on 6th September 2009 and yet the 2nd Respondent vide letter dated 28th march 2022 at paragraph 8 stated that the 1st Respondent produced bank statement from NCBA Bank showing payments made from 24th February 2009 to March 2021 as school fees.
10. She argues that the Respondents’ claim that the deceased was the father of the 1st Respondent’s daughter and the family was aware of the minor’s existence is an act of desperation from the 1st Respondent aimed to defraud and disinherit the rightful beneficiaries.
11. It is her case that the Respondents have flaunted Laws governing proof of paternity of children and as such the Applicant is entitled to fair practices by the Respondents.
The 1st Respondents Case;
12. It argues that Section 48 of the Retirement Benefits Act the provides:
(1) Any person aggrieved by a decision of the Authority or of the Chief Executive Officer under the provisions of this Act or any regulations made thereunder may appeal to the Tribunal within 30 days of the receipt of the decision.
(2) Where any dispute arises between any person and the Authority as to the exercise of the powers conferred upon the Authority by this Act, either party may appeal to the Tribunal in such manner as may be prescribed.
13. It is its case that in the instant case the Applicant being dissatisfied with the decision of the 2nd Respondent in apportioning 5% of the Retirement Benefits of James Otieno Ogonda (deceased) to Nadia Clarissa Namara (Minor) filed a complaint of the same to the Chief Executive Officer of the Retirement Benefits Authority as per the provision of Section 46(1) of the Retirement Benefits Act which was Respondent to by way of a letter dated the 28th day of March, 2022.
14. The Applicant herein being aggrieved with the aforesaid decision and in complete disregard of Section 48 of the Retirement Benefits Act, proceeded to move this Honourable Court without having preferred an Appeal before the Retirement Benefits Tribunal.
15. The Applicant has alleged that the inaction in invoking Section 48 of the Retirement Benefits Act was firstly owing to a lack of evidence and further that due to the fact that time for preferring an Appeal having lapsed, the Tribunal lacked jurisdiction to entertain and hear their Application for Appeal.
16. In responding to the Applicant’s argument that she lacked evidence inhibiting the invocation of section 48, the 1st Respondent invokes Section 49 of the Retirement Benefits Act which provides for the powers of the Appeals Tribunal as being:
On the hearing of an appeal, the Tribunal shall have all the powers of a subordinate court of first class to summon witnesses, to take evidence upon oath or affirmation and to call for the production of books and other documents.
17. Further it argues that Section 50 provides as hereunder:
(1) Any person summoned by the Tribunal to attend and give evidence or to produce any records, books of account, statements or other documents, or required to answer interrogatories and who, without sufficient cause-
(a) refuses or fails to attend at the time and place mentioned in the summons served on him;
(b) refuses or fails to answer, fully and satisfactorily, to the best of his knowledge and belief, all questions lawfully put to him by the Tribunal; or
(c) refuses or fails to produce any records, books of account, statements or other documents which are in his possession or under is control or mentioned or referred to in any summons served on him,
(2) Commits an offence and shall be liable, on conviction, to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.
18. In responding to The Applicants allegation of a lack of jurisdiction by the Tribunal to hear the Appeal for reasons that time had lapsed, it invites this Court to consider Rule 4 of the Retirement Benefits (Tribunal) Rule, 2010 which provides:
An appeal under section 48(1) of the Act shall be entered by presentation of a memorandum of appeal with five copies thereof together with the prescribed fee to clerk within thirty days of receipt of the decision of the Chief Executive Officer.
19. Rule 12 of the Retirement Benefits (Tribunal) Rule, 2010 provides:
In matters of procedure not governed by these Rules or the Act, the Tribunal may adopt the Civil Procedure Rules made under the Civil Procedure Act (Cap. 21) where applicable.
20. Article 159 (2)(c) of the Constitution of Kenya, 2010 which provides:
(2) In exercising judicial authority, the courts and tribunal shall be guided by the following principles:
Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3).
21. Section 9(2) of the Fair Administrative Action Act, 2015 provides:
The High Court or 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 any other written law are first exhausted.
22. Sections 46, 47, 48 and 49 of the Retirement Benefits Act No. 3 of 1997, a mechanism for internal dispute resolution has been provided to any person aggrieved by a decision of the trustees and/or Chief Executive Officer of the scheme. As submitted above, any person so aggrieved could lodge a complaint firstly with the Chief Executive Officer and an Appeal therefrom to the Tribunal.
23. It relies on the case of Republic V National Environmental Management Authority (2011) EKLR.
24. It argues that the Applicant has failed to explain plausible exceptional circumstances that would entitle them to sidestep the internal dispute resolution mechanisms and/or any prejudice that would be suffered were they allowed to invoke the jurisdiction of a judicial review court in its stead.
25. In Misc Civil Appeal No. 139 Of 2014, Vania Investment Pool Limited V Capital Market Authority and Others ( a decision upheld in civil Appeal No. 92 of 2014) at para 37 it was held that;
“In my view, the tribunal ought to have been the first port of call. The Applicant argues that the tribunal is not quorate but I think there is nothing that prevented it from filling his appeal within the time provided by the Act. In the event the matter could not be dealt with the Applicant would be at liberty to seek appropriate relief from this court .Permitting the matter to proceed to substantive hearing would be to impose the mandate of the tribunal contrary to the general principle I have cited…”
26. It believes that this Court lacks the requisite Jurisdiction to hear and determine this Application and the same ought to be struck out with costs to the Respondents.
27. On another front, it is submitted that Section 6 of the Civil Procedure Act provides for the doctrine of sub judice as hereunder:
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
28. The Supreme Court in further expounding on the doctrine of sub judice pronounced itself in the case of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR as hereunder:
“…this means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”
29. It is the Respondents case that there exists another suit instituted suit namely Kisumu CM SUCC No. E742 of 2021 wherein the parties are Nadia Clarrisa Namara (Suing through their Next Friend and Mother Monica Auma Were) Versus Winnie Awino Ogutu & Albert Ogonda Otieno. On the other hand, the parties to the instant Application are; Republic versus Monica Auma Were, Chairperson Board of Trustees (Retirement Benefits Authority), Retirement Benefits Authority and Winnie Awino Ogutu (ex-parte Applicant).
30. The aforementioned succession cause is part heard schedule for hearing on the 13th day of August 2024, the issues in the said suit is of paternity that informs the basis of this Application and that the learned magistrate by a ruling on the 15th day of March 2024 issued directions that parties should agree on the modality of conducting the paternity test.
31. Notably, there are new parties in the instant Application. In the case of Republic V Paul Kihara Kariuki, Attorney General & 2 other Exparte Law Society of Kenya [2020] eKLR; the mere addition of a party or parties to a suit does not alter the substance of the suit.
32. The orders sought in the instant Application are inter alia for a writ of certiorari to quash the 3rd Respondents decision of apportionment of the deceased’s retirement benefits of including the minor amongst the beneficiaries and/or dependents of the deceased, while CM SUCC No. E742 of 2021 seeks to determine such dependency.
33. It is its case that in determining the issue of costs the court is guided by the principle that costs follow the event. It is its case that the said discretion should be exercised judiciously pursuant to section 27(1) of the Civil Procedure Act, Cap 21 of the Law of Kenya.
34. The 1st Respondent in challenge of the Application dated 15th day of May, 2024 raised a, a Preliminary Objection to the entire Application on grounds that the Honourable Court does not have jurisdiction to take cognizance of the Application, hearing and determine the issues raised therein and are thus an abuse of the process of the court which ought to be struck out with costs to the 1st Respondent.
35. The notice indicates that further take notice that counsel for the 1st Respondent shall, in support of this notice will rely on the above cited and all the enabling provisions of the law.
36. The provisions that are invoked are Article 159 (2)(c) of the Constitution of Kenya, 2010, Section 9(2) of the Fair Administrative Actions Act, 2015 and Section 46(1), 48, 49 of the Retirement Benefits Act No. 3 of 1997 of the Law of Kenya and all enabling provisions of the Law.
The 2nd Respondent’s Case;
37. Vide a decision to disburse the retirement benefits of James Otieno Ogonda (Deceased) dated 21st October, 2021, the Board of Trustees made an informed decision to apportion 5% of the deceased’s benefits to one Nadia (a minor).
38. The Board of Trustees categorically cited the rationale for their decision in exercising their discretionary powers in payments of the deceased’s benefits.
39. On The Ex-parte Applicant’s request, the Board of Trustees further clarified its decision vide a letter dated 14th November, 2021 and informed the Applicant of her right to Appeal the said decision to the CEO of the 3rd Respondent.
40. The ex-parte Applicant then proceeded to lodge a Complaint/ Appeal with the 3rd Respondent, seeking review of the aforementioned decision by the Board of Trustees.
41. On 28th March, 2022, the 3rdRespondent delivered its decision on the Ex-parte Applicant’s review Application and upheld the Board of Trustee’s decision.
42. The Court in its ruling dated 29th October, 2024 in Succession Cause MCSUCC/E742/2021: In The Matter Of the Estate of John Otieno Ogonda (Deceased) properly determined that the Nadia (the minor) is indeed a dependant of the estate of the deceased.
43. The Court therefore vindicated the 2nd Respondent’s decision that the minor is indeed a beneficiary of the estate of the deceased.
44. It argues that pursuant to Section 48 of the Retirement Benefits Act, CAP 19,if the Ex-parte Applicant felt dissatisfied with the 3rdRespondent’s decision, she had the option of proffering an Appeal at the Retirement Benefits Tribunal within 30 days of the 3rd Respondent’s decision.
45. The Ex-parte Applicant slept on her rights and consequently the present suit is time barred pursuant to Section 48 of the Retirement Benefits Act, CAP 19.
46. The reasons advanced for failing to proffer an Appeal within time or appeal at all against the decision 3rd Respondent’s decision is that the 2nd and 3rd Respondent refused to furnish the Applicant with the documents relied upon in making their determination.
47. It is its case that any failure to furnish the ex-parte Applicant with the requested documents would not in any way shut out a party from proffering an appeal as none of the documents that she requested if any, would have prevented her from lodging an appeal at the Retirement benefits Tribunal.
48. It argues that the only recourse available to the ex-parte Applicant was to file an Appeal against the 3rd Respondent’s decision within 30 days from the date of the said decision.
49. The 3rdRespondent’s decision dated 28th March, 2022 will reveal that the Ex-parte Applicant was well-informed of her right to Appeal the said decision within 30 days
50. The Applicant chose to ignore the strict provisions of the Retirement Benefits Act, by moving to this Honourable Court instead of the Retirement Benefits Tribunal as contemplated under Section 48 of the Retirement Benefits Act and this Court cannot aid the actions of an indolent party who seeks equitable reliefs.
51. It argues that the instant Application is fatally defective for the reasons highlighted hereunder:
a. The substantive Notice of Motion Application dated 15th May, 2024 seeks an order of Certiorari to quash the decision of the 2nd and 3rd Respondent’s herein with regards to the retirement benefits of James Otieno Ogonda (Deceased’s).
b. That the 2nd Respondent’s decision was rendered on 21st October, 2021 and that of the 3rd Respondent is dated 28th March, 2022.
c. Consequently, the subject decisions that are the subject of the instant Application were rendered over two years ago, prior to the Applicant filing the instant Application.
d. Pursuant to Section 9(3) of the Law Reform Act, leave to file Judicial Review for orders of certiorari cannot be granted unless the same is sought within 6 months of the said decision.
e. The ex-parte Applicant’s Application seeking leave to file the Substantive Application was filed on 4thJune, 2024 and this is more than 2 years and 2 months post the 3rd Respondent’s decision.
52. The requirements under Section 9(3) of the Law reform Act are mandatory in nature and the instant Application falls short of the said requirements.
53. It is the 2nd Respondent’s submission that the instant Application is time-barred.
54. It is its case that The Applicant is in contravention of Section 9 of the Law Reform Act and in particular, the provisions of Section 9(3) which provides as follows:
“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.”
55. Under Order 53, Rule 2 of the Civil Procedure Rules which provides that:
Time for applying for certiorari in certain cases [Order 53, rule 2]
“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the Application for leave is made not later than six months after the date of the proceeding 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.”
56. The decisions that the Applicant seeks to review were rendered over two years.
57. Reliance in the case of Amota Nyasae Nyang'era v Public Service Commission of Kenya & 2 others [2013] eKLR where the Justice Odunga opined that:
“Suffice to say that the Application is incompetent for being barred by the limitation provided under section 9 aforesaid and hence the orders for certiorari cannot be granted”.
58. It also relies in the case of Rosaline Tubei & 8 others v Patrick K. Cheruiyot & 3 others [2014] eKLR where the Court in dealing with a similar issue determined as follows:
“It is discernible from the above, that one needs to file an Application seeking leave to apply for orders of certiorari, within a period of 6 months of the decision. The decision of the tribunal which is sought to be quashed was made in the year 2010 and the decision of the Magistrate's court sought to be quashed, was made on 1 March 2011. This Application was filed on 31 March 2014, about 3 years after the adoption of the award by the Magistrate's Court. The Application is therefore clearly out of time.”
59. In dismissing the Application in the above matter Rosaline Tubei & 8 others v Patrick K. Cheruiyot & 3 others [Supra]-Justice Munyao proceeded rationalize the Court’s decision as below:
“16. It follows that a court cannot grant leave to a party seeking to file an Application for judicial review out of time, and if such leave is granted, it can be challenged at the substantive hearing of the motion.
It is upon the ex-parte Applicants to find other avenues to push their grievances, for the door to access the remedy of judicial review, is now firmly shut and the key to open the door is not available, for it was thrown into the proverbial sea by effluxion of time.
I do not see how this Application can succeed. I decline to extend time for commencement of judicial review and further decline to grant leave to commence judicial review to quash the subject decision of the tribunal and subsequent decree from the Magistrate's Court. This Application is hereby dismissed but I make no orders as to costs.”
60. It submits that the present Application is so incompetent and bad in law that it cannot be cured by Article 159 of the Constitution.
61. In Republic v Ethics and Anti-Corruption Commission & 2 others; Exparte Applicant: Stephen Ogaga Osiro [2020] eKLR it was held as follows:
“Whereas I am in agreement with Justice Mativo’s holding that in extreme situations e.g sickness in which an Applicant could not reasonably under normal circumstances be expected to institute judicial review proceedings within the prescribed time, the situation here is different as no Application for enlargement of time was made and therefore no explanation rendered as to the justifiable cause for the delay.
53. In the circumstances of this case and considering clear mandatory provisions of the law enunciated by the Court of Appeal decisions quoted above, this court cannot invoke judicial discretion to interpret otherwise. Where the provisions of the law are unambiguous on the face of it, a court has no business importing any other interpretation other than to interpret the law as it is. For those reasons, I am in agreement with the 1st and the 2nd Respondents that the suit herein is time barred and the prayers sought are incapable of granting.“Emphasis Ours”
62. It argues that the instant Application lacks merit, is a waste of judicial time and the same ought to be dismissed with costs to the 2ndRespondent.
63. Section 46 of the Retirement Benefits Act which provides as follows:
“Any member of a scheme who is dissatisfied with a decision of the manager, administrator, custodian or trustees of the scheme may request, in writing, that such decision be reviewed by the Chief Executive Officer with a view to ensuring that such decision is made in accordance with the provisions of the relevant scheme rules or the Act under which the scheme is established.”
64. The 3rd Respondent determined the complaint (review Application) by the Applicant and rendered himself on 28th March, 2022.
65. Section 48(1) of the Retirement Benefits Act which provides as below:
“Any person aggrieved by a decision of the Authority or of the Chief Executive Officer under the provisions of this Act or any regulations made thereunder may appeal to the Tribunal within thirty days of the receipt of the decision.”
66. The Applicant herein had 30 days from 28th March, 2022 to lodge an Appeal against the 3rd Respondent’s decision but she failed to do so.
67. The Applicant cannot seek review orders against the decision of the 3rd Respondent before exhausting all available in statutory remedies as provided under the Retirement Benefits Act.
68. Section 9 of the Fair Administrative Actions Act (hereinafter “FAAA) 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 any other 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 subsection (1).
69. Reliance is placed in the case of the Speaker of National Assembly vs. Njenga Karume [2008] 1 KLR 425 as cited with authority by Odunga J. in Republic v Chief Magistrate Kisumu Ex-parte Micah Kisoo [2016] eKLR where the Court opined that:
“In our view there is considerable merit.....that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
70. In the case of Republic v Chief Magistrate Kisumu Ex-parte Micah Kisoo (Supra) when the Court determined that:
“It is now therefore a cardinal principle that, save in the most exceptional circumstances, the judicial review jurisdiction would not be exercised and the court must not exercise it where there exist alternative remedy. In Re Preston [1985] AC 835 at 825D Lord Scarman was of the view that a remedy by judicial review should not be made available where an alternative remedy existed and should only be made as a last resort. “Emphasis Ours”
71. The aforementioned authority of Republic v Chief Magistrate Kisumu Ex-parte Micah Kisoo (Supra) the Court held that:
“It is however my view that the onus is upon the Applicant to satisfy the Court that he ought to be exempted from resorting to the available remedies. In this case the Applicants have not shown why the Court ought to exempt him from the available remedy for setting aside consent orders.”
72. It finally submits that it is trite law that costs follow events.
Analysis and determination;
The issue that arise for determination are;
1) Whether or not the notice of the objection should be allowed.
2) Who should bear the costs.
Whether or not the notice of the objection should be allowed;
73. In order to determine this issue, the court has to assess whether the Notice of Preliminary Objection meets the standards of what amounts to a preliminary objection on a point of law.
74. A preliminary objection must be one that addresses a point of law. It must be one that is clear away from the factual issues.
75. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA as he then was had this to say:
“....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.
At page 701 paragraph B-C Sir Charles Newbold, P. added the following:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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....”
76. Upon considering the grounds as set out in the Notice of Preliminary Objection, the court is satisfied that it raises points of law as a result of which it amounts to a preliminary objection that goes to the root of the jurisdiction of this court.
77. Having so held, the court must then be guided by Section 9(2) of the fair administrative action which donates to this court the discretion to determine when parties can be exempted from the Application of the doctrine of exhaustion.
78. In ascertaining, whether or not the doctrine of exhaustion applies in the instant suit, the court must assess whether the alternative dispute redress mechanism is accessible to the Applicant, whether the Applicant can get redress from that platform, whether the Applicant is likely to suffer Injustices in the hands of the tribunal, whether it will take extremely long for the tribunal to determine the issues before it.
79. At the end of the day, the court has to ensure that it promotes access to justice as guaranteed under Article 48 of the Constitution. This clarion at the end of the day must accord with the Social transformation through access to justice.
80. The factors that offer guidance to the court while exercising this discretion to exempt a party from the doctrine of exhaustion were enunciated in the case of Dawda K. Jawara vs Gambia, where it was held that:
“A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality] ... the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light ...a remedy is considered available only if the Applicant can make use of it in the circumstances of his case."
81. In Republic vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Exparte the National Super Alliance (NASA
[...truncated]
1) THAT this Honorable Court be pleased to issue an order of certiorari to remove into court and quash the 2nd and 3rdRespondents’ decision of apportionment of the retirement benefits of JAMES OTIENO OGONDA (DECEASED) of including NADIA CLARISSA NAMARA (MINOR) amongst the beneficiaries and/or dependant as distributed vide letters dated 21stOctober 2021 and 18th November 2021.
2) THAT the costs of this Application be provided for.
The Applicants Case;
2. The application is supported by the supporting Affidavit of Winnie Awino Ogutu the widow to James Otieno Ogonda (Deceased).
3. She took out the grant of letters of administration intestate of the estate of her deceased husband in Kisumu Chief Magistrate’s Court Succession Cause No. E742 OF 2021.The 1st Respondent sought to revoke/annul letters of administration of grant issued to the Exparte Applicant therein on grounds that the 1st Respondent’s daughter, NADIA CLARISSA NAMARA (MINOR), was the daughter and a beneficiary to JAMES OTIENO OGONDA (DECEASED).
4. On 21st October 2021 the 2nd Respondent apportioned the retirement benefits to the legal dependants of JAMES OTIENO OGONDA (DECEASED) and apportioned the sum of Kshs. 3,829,691.80 in favour of the NADIA CLARISSA NAMARA (MINOR) who is the daughter of the 1st Respondent and alleged to be the daughter of JAMES OTIENO OGONDA (DECEASED) without any proof of paternity.
5. It is her case that the 2nd Respondent’s decision is an attempt to defraud the rightful beneficiaries/heirs of the estate of the deceased.
6. She is aggrieved that the decisions to apportion the 1st Respondent’s daughter, NADIA CLARISSA NAMARA (MINOR) Five percent (5%) of Retirement Benefits when apportioning and distributing the retirement benefits of the deceased to the dependents without the knowledge and information of the Exparte Applicant is arbitrary.
7. It is her case that before apportioning the 1st Respondent’s daughter, NADIA CLARISSA NAMARA (MINOR) Five percent (5%) of Retirement Benefits the 2nd Respondent allegedly followed due procedure and thus was satisfied that the 1st Respondent’s daughter was and is the daughter of the deceased and yet no documentary evidence was adduced to them in arriving to that conclusion.
8. It is her case that the birth certificate of The 1st Respondent’s daughter, NADIA CLARISSA NAMARA (MINOR) does not show the father of the minor and definitely not the deceased.
9. The 1st Respondent’s daughter, NADIA CLARISSA NAMARA (MINOR) was born on 6th September 2009 and yet the 2nd Respondent vide letter dated 28th march 2022 at paragraph 8 stated that the 1st Respondent produced bank statement from NCBA Bank showing payments made from 24th February 2009 to March 2021 as school fees.
10. She argues that the Respondents’ claim that the deceased was the father of the 1st Respondent’s daughter and the family was aware of the minor’s existence is an act of desperation from the 1st Respondent aimed to defraud and disinherit the rightful beneficiaries.
11. It is her case that the Respondents have flaunted Laws governing proof of paternity of children and as such the Applicant is entitled to fair practices by the Respondents.
The 1st Respondents Case;
12. It argues that Section 48 of the Retirement Benefits Act the provides:
(1) Any person aggrieved by a decision of the Authority or of the Chief Executive Officer under the provisions of this Act or any regulations made thereunder may appeal to the Tribunal within 30 days of the receipt of the decision.
(2) Where any dispute arises between any person and the Authority as to the exercise of the powers conferred upon the Authority by this Act, either party may appeal to the Tribunal in such manner as may be prescribed.
13. It is its case that in the instant case the Applicant being dissatisfied with the decision of the 2nd Respondent in apportioning 5% of the Retirement Benefits of James Otieno Ogonda (deceased) to Nadia Clarissa Namara (Minor) filed a complaint of the same to the Chief Executive Officer of the Retirement Benefits Authority as per the provision of Section 46(1) of the Retirement Benefits Act which was Respondent to by way of a letter dated the 28th day of March, 2022.
14. The Applicant herein being aggrieved with the aforesaid decision and in complete disregard of Section 48 of the Retirement Benefits Act, proceeded to move this Honourable Court without having preferred an Appeal before the Retirement Benefits Tribunal.
15. The Applicant has alleged that the inaction in invoking Section 48 of the Retirement Benefits Act was firstly owing to a lack of evidence and further that due to the fact that time for preferring an Appeal having lapsed, the Tribunal lacked jurisdiction to entertain and hear their Application for Appeal.
16. In responding to the Applicant’s argument that she lacked evidence inhibiting the invocation of section 48, the 1st Respondent invokes Section 49 of the Retirement Benefits Act which provides for the powers of the Appeals Tribunal as being:
On the hearing of an appeal, the Tribunal shall have all the powers of a subordinate court of first class to summon witnesses, to take evidence upon oath or affirmation and to call for the production of books and other documents.
17. Further it argues that Section 50 provides as hereunder:
(1) Any person summoned by the Tribunal to attend and give evidence or to produce any records, books of account, statements or other documents, or required to answer interrogatories and who, without sufficient cause-
(a) refuses or fails to attend at the time and place mentioned in the summons served on him;
(b) refuses or fails to answer, fully and satisfactorily, to the best of his knowledge and belief, all questions lawfully put to him by the Tribunal; or
(c) refuses or fails to produce any records, books of account, statements or other documents which are in his possession or under is control or mentioned or referred to in any summons served on him,
(2) Commits an offence and shall be liable, on conviction, to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.
18. In responding to The Applicants allegation of a lack of jurisdiction by the Tribunal to hear the Appeal for reasons that time had lapsed, it invites this Court to consider Rule 4 of the Retirement Benefits (Tribunal) Rule, 2010 which provides:
An appeal under section 48(1) of the Act shall be entered by presentation of a memorandum of appeal with five copies thereof together with the prescribed fee to clerk within thirty days of receipt of the decision of the Chief Executive Officer.
19. Rule 12 of the Retirement Benefits (Tribunal) Rule, 2010 provides:
In matters of procedure not governed by these Rules or the Act, the Tribunal may adopt the Civil Procedure Rules made under the Civil Procedure Act (Cap. 21) where applicable.
20. Article 159 (2)(c) of the Constitution of Kenya, 2010 which provides:
(2) In exercising judicial authority, the courts and tribunal shall be guided by the following principles:
Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3).
21. Section 9(2) of the Fair Administrative Action Act, 2015 provides:
The High Court or 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 any other written law are first exhausted.
22. Sections 46, 47, 48 and 49 of the Retirement Benefits Act No. 3 of 1997, a mechanism for internal dispute resolution has been provided to any person aggrieved by a decision of the trustees and/or Chief Executive Officer of the scheme. As submitted above, any person so aggrieved could lodge a complaint firstly with the Chief Executive Officer and an Appeal therefrom to the Tribunal.
23. It relies on the case of Republic V National Environmental Management Authority (2011) EKLR.
24. It argues that the Applicant has failed to explain plausible exceptional circumstances that would entitle them to sidestep the internal dispute resolution mechanisms and/or any prejudice that would be suffered were they allowed to invoke the jurisdiction of a judicial review court in its stead.
25. In Misc Civil Appeal No. 139 Of 2014, Vania Investment Pool Limited V Capital Market Authority and Others ( a decision upheld in civil Appeal No. 92 of 2014) at para 37 it was held that;
“In my view, the tribunal ought to have been the first port of call. The Applicant argues that the tribunal is not quorate but I think there is nothing that prevented it from filling his appeal within the time provided by the Act. In the event the matter could not be dealt with the Applicant would be at liberty to seek appropriate relief from this court .Permitting the matter to proceed to substantive hearing would be to impose the mandate of the tribunal contrary to the general principle I have cited…”
26. It believes that this Court lacks the requisite Jurisdiction to hear and determine this Application and the same ought to be struck out with costs to the Respondents.
27. On another front, it is submitted that Section 6 of the Civil Procedure Act provides for the doctrine of sub judice as hereunder:
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”
28. The Supreme Court in further expounding on the doctrine of sub judice pronounced itself in the case of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR as hereunder:
“…this means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”
29. It is the Respondents case that there exists another suit instituted suit namely Kisumu CM SUCC No. E742 of 2021 wherein the parties are Nadia Clarrisa Namara (Suing through their Next Friend and Mother Monica Auma Were) Versus Winnie Awino Ogutu & Albert Ogonda Otieno. On the other hand, the parties to the instant Application are; Republic versus Monica Auma Were, Chairperson Board of Trustees (Retirement Benefits Authority), Retirement Benefits Authority and Winnie Awino Ogutu (ex-parte Applicant).
30. The aforementioned succession cause is part heard schedule for hearing on the 13th day of August 2024, the issues in the said suit is of paternity that informs the basis of this Application and that the learned magistrate by a ruling on the 15th day of March 2024 issued directions that parties should agree on the modality of conducting the paternity test.
31. Notably, there are new parties in the instant Application. In the case of Republic V Paul Kihara Kariuki, Attorney General & 2 other Exparte Law Society of Kenya [2020] eKLR; the mere addition of a party or parties to a suit does not alter the substance of the suit.
32. The orders sought in the instant Application are inter alia for a writ of certiorari to quash the 3rd Respondents decision of apportionment of the deceased’s retirement benefits of including the minor amongst the beneficiaries and/or dependents of the deceased, while CM SUCC No. E742 of 2021 seeks to determine such dependency.
33. It is its case that in determining the issue of costs the court is guided by the principle that costs follow the event. It is its case that the said discretion should be exercised judiciously pursuant to section 27(1) of the Civil Procedure Act, Cap 21 of the Law of Kenya.
34. The 1st Respondent in challenge of the Application dated 15th day of May, 2024 raised a, a Preliminary Objection to the entire Application on grounds that the Honourable Court does not have jurisdiction to take cognizance of the Application, hearing and determine the issues raised therein and are thus an abuse of the process of the court which ought to be struck out with costs to the 1st Respondent.
35. The notice indicates that further take notice that counsel for the 1st Respondent shall, in support of this notice will rely on the above cited and all the enabling provisions of the law.
36. The provisions that are invoked are Article 159 (2)(c) of the Constitution of Kenya, 2010, Section 9(2) of the Fair Administrative Actions Act, 2015 and Section 46(1), 48, 49 of the Retirement Benefits Act No. 3 of 1997 of the Law of Kenya and all enabling provisions of the Law.
The 2nd Respondent’s Case;
37. Vide a decision to disburse the retirement benefits of James Otieno Ogonda (Deceased) dated 21st October, 2021, the Board of Trustees made an informed decision to apportion 5% of the deceased’s benefits to one Nadia (a minor).
38. The Board of Trustees categorically cited the rationale for their decision in exercising their discretionary powers in payments of the deceased’s benefits.
39. On The Ex-parte Applicant’s request, the Board of Trustees further clarified its decision vide a letter dated 14th November, 2021 and informed the Applicant of her right to Appeal the said decision to the CEO of the 3rd Respondent.
40. The ex-parte Applicant then proceeded to lodge a Complaint/ Appeal with the 3rd Respondent, seeking review of the aforementioned decision by the Board of Trustees.
41. On 28th March, 2022, the 3rdRespondent delivered its decision on the Ex-parte Applicant’s review Application and upheld the Board of Trustee’s decision.
42. The Court in its ruling dated 29th October, 2024 in Succession Cause MCSUCC/E742/2021: In The Matter Of the Estate of John Otieno Ogonda (Deceased) properly determined that the Nadia (the minor) is indeed a dependant of the estate of the deceased.
43. The Court therefore vindicated the 2nd Respondent’s decision that the minor is indeed a beneficiary of the estate of the deceased.
44. It argues that pursuant to Section 48 of the Retirement Benefits Act, CAP 19,if the Ex-parte Applicant felt dissatisfied with the 3rdRespondent’s decision, she had the option of proffering an Appeal at the Retirement Benefits Tribunal within 30 days of the 3rd Respondent’s decision.
45. The Ex-parte Applicant slept on her rights and consequently the present suit is time barred pursuant to Section 48 of the Retirement Benefits Act, CAP 19.
46. The reasons advanced for failing to proffer an Appeal within time or appeal at all against the decision 3rd Respondent’s decision is that the 2nd and 3rd Respondent refused to furnish the Applicant with the documents relied upon in making their determination.
47. It is its case that any failure to furnish the ex-parte Applicant with the requested documents would not in any way shut out a party from proffering an appeal as none of the documents that she requested if any, would have prevented her from lodging an appeal at the Retirement benefits Tribunal.
48. It argues that the only recourse available to the ex-parte Applicant was to file an Appeal against the 3rd Respondent’s decision within 30 days from the date of the said decision.
49. The 3rdRespondent’s decision dated 28th March, 2022 will reveal that the Ex-parte Applicant was well-informed of her right to Appeal the said decision within 30 days
50. The Applicant chose to ignore the strict provisions of the Retirement Benefits Act, by moving to this Honourable Court instead of the Retirement Benefits Tribunal as contemplated under Section 48 of the Retirement Benefits Act and this Court cannot aid the actions of an indolent party who seeks equitable reliefs.
51. It argues that the instant Application is fatally defective for the reasons highlighted hereunder:
a. The substantive Notice of Motion Application dated 15th May, 2024 seeks an order of Certiorari to quash the decision of the 2nd and 3rd Respondent’s herein with regards to the retirement benefits of James Otieno Ogonda (Deceased’s).
b. That the 2nd Respondent’s decision was rendered on 21st October, 2021 and that of the 3rd Respondent is dated 28th March, 2022.
c. Consequently, the subject decisions that are the subject of the instant Application were rendered over two years ago, prior to the Applicant filing the instant Application.
d. Pursuant to Section 9(3) of the Law Reform Act, leave to file Judicial Review for orders of certiorari cannot be granted unless the same is sought within 6 months of the said decision.
e. The ex-parte Applicant’s Application seeking leave to file the Substantive Application was filed on 4thJune, 2024 and this is more than 2 years and 2 months post the 3rd Respondent’s decision.
52. The requirements under Section 9(3) of the Law reform Act are mandatory in nature and the instant Application falls short of the said requirements.
53. It is the 2nd Respondent’s submission that the instant Application is time-barred.
54. It is its case that The Applicant is in contravention of Section 9 of the Law Reform Act and in particular, the provisions of Section 9(3) which provides as follows:
“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.”
55. Under Order 53, Rule 2 of the Civil Procedure Rules which provides that:
Time for applying for certiorari in certain cases [Order 53, rule 2]
“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the Application for leave is made not later than six months after the date of the proceeding 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.”
56. The decisions that the Applicant seeks to review were rendered over two years.
57. Reliance in the case of Amota Nyasae Nyang'era v Public Service Commission of Kenya & 2 others [2013] eKLR where the Justice Odunga opined that:
“Suffice to say that the Application is incompetent for being barred by the limitation provided under section 9 aforesaid and hence the orders for certiorari cannot be granted”.
58. It also relies in the case of Rosaline Tubei & 8 others v Patrick K. Cheruiyot & 3 others [2014] eKLR where the Court in dealing with a similar issue determined as follows:
“It is discernible from the above, that one needs to file an Application seeking leave to apply for orders of certiorari, within a period of 6 months of the decision. The decision of the tribunal which is sought to be quashed was made in the year 2010 and the decision of the Magistrate's court sought to be quashed, was made on 1 March 2011. This Application was filed on 31 March 2014, about 3 years after the adoption of the award by the Magistrate's Court. The Application is therefore clearly out of time.”
59. In dismissing the Application in the above matter Rosaline Tubei & 8 others v Patrick K. Cheruiyot & 3 others [Supra]-Justice Munyao proceeded rationalize the Court’s decision as below:
“16. It follows that a court cannot grant leave to a party seeking to file an Application for judicial review out of time, and if such leave is granted, it can be challenged at the substantive hearing of the motion.
It is upon the ex-parte Applicants to find other avenues to push their grievances, for the door to access the remedy of judicial review, is now firmly shut and the key to open the door is not available, for it was thrown into the proverbial sea by effluxion of time.
I do not see how this Application can succeed. I decline to extend time for commencement of judicial review and further decline to grant leave to commence judicial review to quash the subject decision of the tribunal and subsequent decree from the Magistrate's Court. This Application is hereby dismissed but I make no orders as to costs.”
60. It submits that the present Application is so incompetent and bad in law that it cannot be cured by Article 159 of the Constitution.
61. In Republic v Ethics and Anti-Corruption Commission & 2 others; Exparte Applicant: Stephen Ogaga Osiro [2020] eKLR it was held as follows:
“Whereas I am in agreement with Justice Mativo’s holding that in extreme situations e.g sickness in which an Applicant could not reasonably under normal circumstances be expected to institute judicial review proceedings within the prescribed time, the situation here is different as no Application for enlargement of time was made and therefore no explanation rendered as to the justifiable cause for the delay.
53. In the circumstances of this case and considering clear mandatory provisions of the law enunciated by the Court of Appeal decisions quoted above, this court cannot invoke judicial discretion to interpret otherwise. Where the provisions of the law are unambiguous on the face of it, a court has no business importing any other interpretation other than to interpret the law as it is. For those reasons, I am in agreement with the 1st and the 2nd Respondents that the suit herein is time barred and the prayers sought are incapable of granting.“Emphasis Ours”
62. It argues that the instant Application lacks merit, is a waste of judicial time and the same ought to be dismissed with costs to the 2ndRespondent.
63. Section 46 of the Retirement Benefits Act which provides as follows:
“Any member of a scheme who is dissatisfied with a decision of the manager, administrator, custodian or trustees of the scheme may request, in writing, that such decision be reviewed by the Chief Executive Officer with a view to ensuring that such decision is made in accordance with the provisions of the relevant scheme rules or the Act under which the scheme is established.”
64. The 3rd Respondent determined the complaint (review Application) by the Applicant and rendered himself on 28th March, 2022.
65. Section 48(1) of the Retirement Benefits Act which provides as below:
“Any person aggrieved by a decision of the Authority or of the Chief Executive Officer under the provisions of this Act or any regulations made thereunder may appeal to the Tribunal within thirty days of the receipt of the decision.”
66. The Applicant herein had 30 days from 28th March, 2022 to lodge an Appeal against the 3rd Respondent’s decision but she failed to do so.
67. The Applicant cannot seek review orders against the decision of the 3rd Respondent before exhausting all available in statutory remedies as provided under the Retirement Benefits Act.
68. Section 9 of the Fair Administrative Actions Act (hereinafter “FAAA) 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 any other 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 subsection (1).
69. Reliance is placed in the case of the Speaker of National Assembly vs. Njenga Karume [2008] 1 KLR 425 as cited with authority by Odunga J. in Republic v Chief Magistrate Kisumu Ex-parte Micah Kisoo [2016] eKLR where the Court opined that:
“In our view there is considerable merit.....that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
70. In the case of Republic v Chief Magistrate Kisumu Ex-parte Micah Kisoo (Supra) when the Court determined that:
“It is now therefore a cardinal principle that, save in the most exceptional circumstances, the judicial review jurisdiction would not be exercised and the court must not exercise it where there exist alternative remedy. In Re Preston [1985] AC 835 at 825D Lord Scarman was of the view that a remedy by judicial review should not be made available where an alternative remedy existed and should only be made as a last resort. “Emphasis Ours”
71. The aforementioned authority of Republic v Chief Magistrate Kisumu Ex-parte Micah Kisoo (Supra) the Court held that:
“It is however my view that the onus is upon the Applicant to satisfy the Court that he ought to be exempted from resorting to the available remedies. In this case the Applicants have not shown why the Court ought to exempt him from the available remedy for setting aside consent orders.”
72. It finally submits that it is trite law that costs follow events.
Analysis and determination;
The issue that arise for determination are;
1) Whether or not the notice of the objection should be allowed.
2) Who should bear the costs.
Whether or not the notice of the objection should be allowed;
73. In order to determine this issue, the court has to assess whether the Notice of Preliminary Objection meets the standards of what amounts to a preliminary objection on a point of law.
74. A preliminary objection must be one that addresses a point of law. It must be one that is clear away from the factual issues.
75. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA as he then was had this to say:
“....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.
At page 701 paragraph B-C Sir Charles Newbold, P. added the following:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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....”
76. Upon considering the grounds as set out in the Notice of Preliminary Objection, the court is satisfied that it raises points of law as a result of which it amounts to a preliminary objection that goes to the root of the jurisdiction of this court.
77. Having so held, the court must then be guided by Section 9(2) of the fair administrative action which donates to this court the discretion to determine when parties can be exempted from the Application of the doctrine of exhaustion.
78. In ascertaining, whether or not the doctrine of exhaustion applies in the instant suit, the court must assess whether the alternative dispute redress mechanism is accessible to the Applicant, whether the Applicant can get redress from that platform, whether the Applicant is likely to suffer Injustices in the hands of the tribunal, whether it will take extremely long for the tribunal to determine the issues before it.
79. At the end of the day, the court has to ensure that it promotes access to justice as guaranteed under Article 48 of the Constitution. This clarion at the end of the day must accord with the Social transformation through access to justice.
80. The factors that offer guidance to the court while exercising this discretion to exempt a party from the doctrine of exhaustion were enunciated in the case of Dawda K. Jawara vs Gambia, where it was held that:
“A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality] ... the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light ...a remedy is considered available only if the Applicant can make use of it in the circumstances of his case."
81. In Republic vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Exparte the National Super Alliance (NASA
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