PROCEDURE FOR APPLICATION FOR JUDICIAL REVIEW

PROCEDURE FOR APPLICATION FOR JUDICIAL REVIEW

Application for leave is by way of Chamber Summons under Civil Procedure Rules Order LIII.  This application is made ex parte in sub section 3 it requires that notice be given for application for leave.  The notice is to be given to the registrar of the High Court.

Time limitation is crucial.  Order 53 provides for time limits within which a person can apply for leave.  The law is very strict where it comes to certiorari, you have to file your application for leave within 6 months of the date your application e.g. when a liquor licensing was denied.  If you do not file within 6 months the court cannot grant an extension.

Time limitation is not stipulated for Mandamus or Prohibition but it is required that you file the application within a reasonable time.  Reasonable time means that you may serve 3 months after the licence was denied and be denied leave or for 8 months and they grant leave.  But with certiorari it has to be 6 months and it cannot be extended.

Order 53 (4) – Grant of leave to make the application can operate as a stay of proceedings.  It can be a stay of the proceedings that you are complaining about.

The grant of leave will operate as a stay of proceedings where you are seeking to quash whatever has taken place under certiorari.  Stay will only apply in case of certiorari and prohibition and not Mandamus.

APPLICATION FOR JUDICIAL REVIEW

Under section 3(1) after you have been granted leave, you make your application by way of Notice of Motion which will include a statement.  Within 21 days of the grant of leave, you must make your application.  If personal allegations have been made, you must serve the party that allegations have been made against. You must serve the other party, e.g. officials of liquor licensing court etc. within 8 clear days of hearing;

You file an Affidavit of Service stating some things usually a court process server will swear an Affidavit stating how they effected Service.

File the Affidavit of service within 8 clear days of hearing and file the Affidavit with a court registry and the affidavit must be in the file on the day of hearing.

Hearing:  This is when your application for Judicial Review is done.  The administrative body or tribunal will enter appearance which is done in a prescribed format.  After the court listens to your allegations, the court makes a ruling and the court may rule in your favour or against.  When asking for certiorari, you must categorically indicate that in your pleadings etc.

REMEDIES:

There are only three remedies that the courts can grant for judicial review

Certiorari

Prohibition;

Mandamus

Whether the courts will grant one of these rules depends on the circumstances.

CERTIORARI

The word Certiorari is a Latin word which simply means ‘to be informed’.  Historically it was a royal command or demand for information.  The practice was that the sovereign who was the king or the queen upon receiving a petition from a subject complaining of some injustice done to him would state that he wishes to be certified of the matter and then he would order the matter to be brought up to him.  Ordering the matter to be brought up to him will include ordering that the records of the proceedings be brought up to the sovereign.  The purpose of calling up the records was in order for the sovereign to quash any decision that has been made after acquainting himself of the matter in other words after being certified of the matter.

Currently, certiorari is an order to remove proceedings from an administrative body or an inferior court to the High Court in order to be investigated and if found wanting on any one of the grounds we studied including ultra vires, be quashed.  The order can issue against administrative tribunals, it can also issue against inferior courts such as the industrial courts, it can issue against local authorities, it can issue against Ministers of Government.  It can also issue against miscellaneous public bodies exercising public functions.

Majid Cockar V. Director of Pensions Nai H.C. Misc App 532 of 1998

This was the case between the former Chief Justice Cockar and the Director of Pensions.  In computing the pension payable to the CJ the pensions department made a mistake in their calculations. The former Chief Justice went to court and upon application for Judicial Review the court issued the order of certiorari to quash the decision awarding the former CJ an amount of money as pension.

For Certiorari to be issued, indeed for any one of the 3 orders to be issued, a person must be having Locus Standi which is crucial as you must have the capacity to sue.  You have capacity to sue by having a sufficient interest in the matter. If you don’t have sufficient interest in the matter, the court will not grant you any of the orders.  You have a sufficient interest in the matter if you will be directly affected by the matter.

PROHIBITION:

The order of Prohibition is an order issued by the High Court which prohibits a body (administrative bodies) from continuing proceedings; it will also prohibit a body from continuing to carry out decisions wrongly or wrongfully made.  This order may be issued against judicial body acting in an administrative capacity i.e industrial court.  It can also issue against an administrative body performing administrative duties or against the government officials etc.  It can be issued to stop a public body from continuing proceedings that are ultra vires.  It can also be issued to stop an admin body from continuing to do something in excess of jurisdiction.  It can also be used to stop an administration body from abusing their powers.

R V. Electricity Commissioners Ex parte Electricity Joint Committee (1924) 1 K.B 171

At Page 559 Lord Denning stated as follows

“It is available to prohibit administrative authorities from exceeding their powers or misusing them.”

Lord Atkin in the same case said as follows

“If proceedings establish that the body complained of exceeded its jurisdiction, by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari, I think that Prohibition will lie to restrain it from exceeding its jurisdiction.”

This illustrates the point that prohibition will lie to restrain an administrative body from doing something wrongly or misusing its power, abuse of power etc.

When one applies for the order of Certiorari, one is seeking to quash a decision that has already been made.  At the time of application for judicial review, the order you seek the court to quash must be presented to the court by making a photocopy of the order and attaching it to the Application. 

With Prohibition, you do not have to attach the copy of the order.

MANDAMUS:

The order of Mandamus is derived from the Latin word Mandare meaning to command.  It is a court order issued to compel the performance of a public duty where a public body or official has unlawfully refused, declined or otherwise failed to undertake the duty.  Mandamus is a court order issued to compel the performance of a public duty where a public body or official has public refused failed or declined to undertake a duty. 

Mandamus issues where there is a duty imposed by statute or common law.  Please note that the duty must be a public duty, Mandamus will not issue in respect of a duty that is of a private nature even if the body in question is a public body.  For example where two construction companies agree to undertake some work who agree to resolve any dispute between them by arbitration through the industrial court.  The industrial court will be performing a private function and thus the order of Mandamus cannot issue.

For Mandamus to issue, the Applicant must have made a request for the performance of a public duty which has been refused, declined or ignored.  This means that if a public admin body refused to do something, you must approach it and request it to perform the function or the courts will not hear you.  Unreasonable delay on the part of the public body will be treated as refusal.  The duty must be a specific duty.  You cannot apply for the order of Mandamus for a duty that is general, it must be specific e.g. under the English Gas (1972) it was the duty of the British Gas Corporation to develop an efficient coordinated and economical system of Gas supply for Great Britain.  Such an obligation is so imprecise i.e. it is so general that it would not be enforceable by the order of Mandamus.  The lack of specificity does not mean that it is meaningless.  Duty can be carried out but it is not precise.  Mandamus is used to enforce performance of specific duties and not the exercise of mere powers.

Kenya National Examination Council V. R      Ex parte Geoffrey Gathinji Njoroge & others Civil Appeal No. 266 of 1996

Justices of Appeal Tunoi and Shah stated as follows regarding the powers of the Kenya National Examination Council

“The times and frequency of the examinations are left to the discretion of the council and it cannot be enforced by Mandamus to hold an examination at any particular time of the year.

Daniel Nyongesa & Others V. Egerton University College Civil Appeal NO. 90 of 1989

In this case Nyongesa’s exam results were held by the university and when he went to court, the court issued an order of mandamus for the court to release the results. Nyongesa had requested the university for his results and they had refused so he applied for an order of mandamus to the court and he was granted.  There was a specific duty for the university to release the results.

DISTINCTION BETWEEN JUDICIAL REVIEW AND ORDINARY REVIEW (REVIEW OF JUDGMENT)

Order XLIV Civil Review – APPLICATION FOR REVIEW OF JUDGMENTS

In addition to judicial review there is what is known as ordinary review.  Judicial review is covered under Order 53 and Ordinary Review is provided for under Order 44 of the Civil Procedure Rules. 

 Ordinary Review is a review of judgment or order of a court of law.

 Judicial review is a review of an act or a decision of an administrative body.

When can a person review an ordinary review in a different court?

1.                 If the judge that made the decision is no longer at the station, then one can apply to a different court for review.

2.                 If the judge who made the judgment has not been present for 3 months after 3 months it is considered that there has been an inordinate delay and the court can allow you to review the decision in a different court.

There is no time limitation to when one can apply for an ordinary review but the application must be made without delay.  There is no requirement of leave of court to apply unlike in judicial review where one has to seek leave of court.

Ordinary Review is review of judgment or order made by a court of law (Judicial Review is review of an act or decision of an administrative body)

Ordinary Review is provided for under Order XLIV (44) of the Civil Procedure Rules.  This order provides that any person considering himself aggrieved by decree or an order from which an Appeal is allowed but from which no appeal has been allowed, or a person who feels aggrieved by a decree or order from which no Appeal is allowed may petition the court that made the order of decree on the following conditions

(i)                On the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time the decree or order was made;

(ii)             On a count of some mistake or error apparent on the face of the record; for example error of law, typographical errors, mathematical errors etc.

(iii)           For any other sufficient reason.

In these 3 circumstances an aggrieved person may apply to the court which made the decree or order.  There are certain exceptions to the requirement that application for review be made to the court that made the decree or order

1.                 Where the Chief Justice orders some other person, i.e. some other judge or magistrate to hear their application for review;

2.                 Where the Judge or Magistrate who made the decree or the order is no longer attached to that court e.g. where they have been transferred or have resigned.

3.                 Where the Magistrate or Judge who made the order or decree has been absent from the station for more than 3 months from the date of filing of your application.

4.                 Where you have discovered new and important matter of evidence.

Note that there is no time limitation for application for ordinary review but it must be brought without unnecessary delay.  Upon ordinary Review, there may be a re-hearing of a case.  The case may be heard afresh.

No double review is allowed meaning that no application can be brought for review of an order issued upon an application for ordinary review.

DISTINCTIONS BETWEEN ORDINARY REVIEW AND JUDICIAL REVIEW

1.                 With judicial review an aggrieved party must first of all apply for leave of court and on the other hand there is no requirement for leave on application for ordinary review.

2.                 With Judicial Review especially where an applicant seeks the order of Certiorari the application must be brought within six months i.e. there is time limitation of six months on the other hand with ordinary review there is no time limitation but the application must be brought without unnecessary delay.

3.                 this is with regard to the grounds – the grounds for judicial review are not the same as those for ordinary review.

The Industrial Court is subordinate to the High Court even though it is presided over by a Judge. 

Kenya Airways Limited V. Kenya Airways Pilots Association H.C. Nai. Misc App No. 254 of 2001

Judicial Review is not an Appeal.

Distinction between Appeal and Judicial Review

An Appeal has been described as the transfer or taking of a case from a lower court to a higher court in the hope of reversing or modifying the decision of the former.  An Appeal involves taking a case to a higher court for rehearing to determine whether the decision arrived at by the lower court was right or wrong.  When one appeals a decision, one is claiming that it is wrong or incorrect on the basis of evidence tendered and the applicable law and that the appellate body should change the decision.  For example if X was found to have defamed Y upon judgment X might appeal that finding or the amount of damages which the court awarded to Y.  the court of Appeal if persuaded of the merits of the case may allow X’s Appeal in which case the court substitutes its view for that of the lower court.  Thus we can say, that on the other hand with judicial review, a court is not concerned with the merits of the case in other words, a court is not concerned with whether the decision was right or wrong on the basis of the evidence tendered and the Applicable Law, but with whether the decision making process was lawful or unlawful.

Whereas an appeal is concerned with a decision, )it is concerned with whether a decision was right or wrong) judicial review is concerned with the decision making process.

Chief Constable of North Wales Police V. Evans [1982] 1 WLR 1155

In this case the court stated in an effort to distinguish judicial review from an appeal that the purpose of judicial review is to ensure that an individual is given fair treatment by a wide range of administrative authorities be they judicial quasi judicial or purely administrative to which the individual has been subject.  It is no part of that purpose to substitute the opinion of the judiciary or the individual judges for that of the authority constituted by law to decide the matter in question.  The consequences of finding that a decision or a decision was unlawful, and the consequences of finding that the decision making process was unlawful, improper or flawed is that it is invalidated.  This means in the case of Judicial Review, that the court can order a decision to be made again but the second time, it must be made in accordance with the law.  Please note that it would be acceptable for the decision maker to come to the same conclusion provided the law is respected.

Mirugi Kariuki V. Attorney General [

The Appellant was charged with Treason.  He petition the Attorney General to grant leave to an English Barrister to lead his defence.  In the exercise of his absolute discretion to consider such a request conferred by Section 11 of the Advocates Act, the Attorney General wrote a letter to the Appellant saying that leave would not be granted because the Appellant’s trial was straight forward and would not require the assistance of a foreign advocate.  In an application for Certiorari to quash the Attorney General’s decision, the court found that the grounds on which the Attorney General’s grounds were founded were suspicious. The Court removed the offending letter to the High Court quashed it and directed the Attorney General to reconsider Mr. Kariuki’s request in a manner more respectful to the norms of sound administration.

The point is that even if the law was not followed in the first place, the court can order that body to reconsider the matter.

With Appeals, if there is a right of appeal and an appeal succeeds, the Appellate Court will substitute its own decision for that of the inferior tribunal and dispose of the case accordingly.

Another attribute of appeal is that it is granted by statute.  Unless a statute expressly allows appeal, an aggrieved party cannot lodge an appeal against a decision.  In cases where appeals are allowed against administrative decisions or actions, the relevant law will expressly state that Appeal is allowed.  On the other hand in judicial review, the court exercises inherent powers, which gives it authority to review unlawful decisions.  In other words, there need not be express statutory provisions authorising the High Court to exercise judicial review over an administrative decision, or an administrative action.

Please note that even if a statute specifically excludes appeal to a Higher Court, this does not bar the High Court from exercising powers of judicial review.