Procedure FOR THE Appplication OF Judicial Review AND THE Remedies Explained - Kenya LAW PDF

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11/11/2020

PROCEDURE FOR THE APPPLICATION OF JUDICIAL REVIEW AND THE REMEDIES EXPLAINED - KENYA LAW

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PROCEDURE FOR THE APPPLICATIO N OF JUDICIAL REVIEW AND THE REMEDIES

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REMEDIES EXPLAINED KENYA LAW

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Application for leave is by way of Chamber Summons under Civil Procedure Order

Rules

LIII.

This

application is made ex

parte

in

sub

section 3 it requires that notice be given for leave

application

for

The notice is

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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 le your application for leave within 6 months of the

date

your

application e.g. when a liquor licensing was denied. If you do not le within 6 months the

court

cannot

grant an extension. Time limitation is not stipulated

for

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stipulated

for

Mandamus

or

Prohibition but it is required that you le 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  It can be

a

stay

of the

proceedings that you

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proceedings that you are

complaining

about. The grant of leave will operate as a stay of

proceedings

where

you

seeking

to

are 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,

make

you your

application by way of Notice

of

Motion

which will include a

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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 ofcials

party, of

e.g. liquor

licensing court etc. within 8 clear days of hearing; You le an Afdavit of

Service

stating

some things usually a court process server will

swear

an

Afdavit stating how they

effected

Service. https://ogekazacharia.blogspot.com/2017/04/judicial-review-explained-kenya-law.html

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File the Afdavit of service within 8 clear days of hearing and le the Afdavit with a court registry and the afdavit must be in the le on the day of hearing.

Hearing:

This

when

your

application Judicial

is

for

Review

done.

is 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

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your

favour

against.

or When

asking for certiorari, you

must

categorically indicate that

in

your

pleadings etc.

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.

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The word Certiorari is a Latin word which simply means ‘to be informed’. Historically it was a royal command demand

or for

information.

The

practice was that the sovereign who was the king or the queen upon

receiving

petition

from

a a

subject complaining of

some

injustice

done to him would state that he wishes to be certied 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

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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

acquainting of

the

other

after himself

matter words

in

after

being certied 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

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order

to

investigated found any

be and

wanting one

if on

of

the

grounds we studied including ultra vires, be quashed. order

can

The 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.

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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

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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 sufcient interest

in

the

matter. If you don’t have

sufcient

interest

in

the

matter, the court will not grant you any of the orders. You have a sufcient interest in the matter if you will

be

affected

directly by

the

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affected

by

the

order

of

matter.

The

Prohibition

is

an

order issued by the High

Court

prohibits

which

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. issue

It can also against

an

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issue

against

administrative

an body

performing administrative duties or

against

the

government ofcials 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

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Joint Committee (1924) 1 K.B 171 At Page 559 Lord Denning

stated

as

available

to

follows “It

is

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 nal decision being

subject

to

being

brought

up

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being

brought

and

up

quashed

certiorari,

on

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 from

doing

something or

body

wrongly

misusing

power,

abuse

its of

power etc.

When one applies for the

order

Certiorari,

one

of is

seeking to quash a decision

that

has

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decision

that

has

already been made. At

the

time

application

of 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.

The

order

of

Mandamus is derived from the Latin word Mandare meaning to command.

It is a

court order issued to

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court order issued to compel

the

performance

of

a

public duty where a public

body

or

ofcial

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 ofcial refused

body has

or public

failed

or

declined

to

undertake a duty.

Mandamus

issues

where there is a duty imposed by statute or

common

law

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or

common

law.

Please note that the duty

must

be

public

a

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 arbitration

them

by

through

the industrial court. The industrial court will be performing a private function and thus the order of Mandamus issue

cannot

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issue.

For

Mandamus

to

issue, the Applicant must have made a request

for

the

performance

of

public

which

has

duty

been

a

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 specic duty.

You

cannot apply for the

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cannot apply for the order of Mandamus for a duty that is general, it must be specic the

e.g.

under

English

Gas

(1972) it was the duty of the British Gas Corporation

to

develop an efcient 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

specicity

does

not mean that it is meaningless.

Duty

can be carried out but it is not precise

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but it is not precise. Mandamus is used to enforce performanc...