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Court of AppealPartially AllowedAppeal against the ruling of Shields, J of 27th October, 1993 in High Court Misc Cause 762 of 1993· [1994] KECA 95 (KLR)

Johnson Ogendo & another v Benjamin K Nzioka & 5 others [1994] KECA 95 (KLR)

Court of Appeal of Kenya
17 June 1994
4,863 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that courts can refuse to hear interested parties in judicial review cases, and skipping a procedural step doesn't invalidate proceedings.

What this practically means

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Executive summary

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The appellants, Johnson Ogendo and George Muchai, had been installed as COTU office holders following a Governing Council meeting of 2nd July 1993 at which the respondents were purportedly removed. The Registrar of Trade Unions registered the change on 5th July 1993 after an inquiry, despite the respondents' objections. Shields, J quashed the registration by certiorari, holding the Registrar had breached the Rules of Natural Justice by not hearing the objectors. In earlier related proceedings the Court of Appeal upheld that certiorari order (Civil Appeal No 166 of 1993). The present appeal was against Shields, J's ruling of 27th October 1993 declining to hear counsel for the appellants as interested parties. The Court of Appeal held that under order 53 rule 6 the judge had a discretion to hear only proper persons, that natural justice (audi alteram partem) applies only where a party's conduct is being condemned - and only the Registrar's conduct was under attack - and that judicial review concerns the decision-making process, not the merits. The Court also held that failure to obtain prior ex parte leave was a mere technicality that could not nullify the exercise of the High Court's jurisdiction, invoking section 79A of the Civil Procedure Act and the principle that rules of procedure are servants, not masters. The Court found, however, that the judge erred in ordering the appellants, whom he had refused to hear, to pay costs. The appeal was accordingly allowed only against the costs order and otherwise dismissed with costs. The certiorari order and the resulting status quo ante were left undisturbed, the Court holding that equity will not act in vain.

Key legal issues

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01

Discretion to hear interested parties in judicial review

Holding

The learned judge properly exercised his discretion under order 53 rule 6 in refusing to hear counsel for the appellants; their conduct was not being condemned and their submissions were irrelevant to whether the Registrar breached natural justice.

Reasoning

The judicial review concerned only whether the Registrar complied with natural justice before registering the change of COTU officers. The appellants' conduct was not under investigation, and nothing they could submit would bear on the Registrar's failure to hear the objectors. Serving them with the application did not oblige the judge to hear them; the direction did not deprive him of his discretion. Refusing to hear them was a proper exercise of discretion and would have been futile.

p. 5
02

Effect of failure to obtain prior ex parte leave for judicial review

Holding

Omission to obtain ex parte leave before the inter partes hearing of judicial review does not render the hearing a nullity; it is a technical procedural requirement that should not defeat the exercise of an unquestioned jurisdiction.

Reasoning

Order 53 as amended, read with the Law Reform Act and English practice, suggests leave should first be obtained, but this formal technical requirement should not cause the exercise of a jurisdiction the High Court undoubtedly enjoys to be rendered a nullity. Section 79A of the Civil Procedure Act and the liberal approach to procedural breaches (Ndegwa Wachira) support upholding the hearing on the merits.

p. 7
03

Record of proceedings and adjournments

Holding

The cryptic record of proceedings did not render the appeal sustainable, and refusal of adjournments did not demonstrate bias, this Court having earlier exonerated the learned judge.

Reasoning

The same record had been used in two prior proceedings before the Court of Appeal without being found unhelpful. The refusals of adjournment were in the wake of attempts to delay the hearing, and this Court in Civil Application No NAI 249 of 1993 exonerated the judge. These grounds of appeal accordingly failed.

p. 6
04

Costs against unheard parties

Holding

It was wrong for the learned judge to order the appellants to pay costs after refusing to hear submissions on their behalf; the appeal succeeded only to that limited extent.

Reasoning

Having declined to hear the appellants and concluded the proceedings without their submissions, the judge ought not to have visited costs upon them. The Court allowed the appeal solely against that costs order while dismissing the appeal on all other grounds.

p. 7

Legal principles established

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  • Under order 53 rule 6 the High Court has a discretion to hear an interested party in opposition to judicial review only if it appears to the court to be a proper person to be heard; a direction to serve a party does not deprive the judge of that discretion.
  • The principles of natural justice (audi alteram partem) apply only where the act of a party is being condemned; they do not entitle a hearing to a person whose conduct is not under attack.
  • Mere technicalities must not stand in the way of substantial justice; an omission of an unimportant procedural step, such as prior ex parte leave, does not nullify the exercise of a jurisdiction the High Court undoubtedly enjoys.
  • Judicial review is concerned with the decision-making process, not the merits of the decision.

Court orders

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  1. 1.Appeal allowed only against the order that the appellants should pay costs of the ruling of 27th October, 1993
  2. 2.Appeal otherwise dismissed with costs
On appeal from
High Court of Kenya
High Court Misc Cause 762 of 1993
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling of the High Court in judicial review proceedings (order 53 of the Civil Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Johnson Ogendo & another v Benjamin K Nzioka & 5 others [1994] KECA 95 (KLR)", Case Analysis (1994). Appeal against the ruling of Shields, J of 27th October, 1993 in High Court Misc Cause 762 of 1993. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/95/eng@1994-06-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.