Johnson Ogendo & another v Benjamin K Nzioka & 5 others [1994] KECA 95 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge properly exercised his discretion under order 53 rule 6 in refusing to hear counsel for the appellants as interested parties
- 2.Whether the refusal to hear the appellants breached the Rules of Natural Justice
- 3.Whether the incomplete record of proceedings vitiated the High Court proceedings
- 4.Whether the refusal of adjournments amounted to bias or a conclusive determination against the appellants
- 5.Whether absence of prior ex parte leave for judicial review rendered the hearing a nullity
- 6.Whether the order as to costs against the appellants was proper
Key legal issues
#Discretion to hear interested parties in judicial review
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.
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.
Effect of failure to obtain prior ex parte leave for judicial review
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.
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.
Record of proceedings and adjournments
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.
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.
Costs against unheard parties
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.
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.
Legal principles established
#- 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
#- 1.Appeal allowed only against the order that the appellants should pay costs of the ruling of 27th October, 1993
- 2.Appeal otherwise dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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)
Relief refused
#Setting aside of the ruling of Shields, J declining to hear submissions on behalf of the appellants
Under order 53 rule 6 the judge had discretion to hear only proper persons; the issue was the Registrar's decision-making process, not the appellants' conduct, and their submissions could not have changed the outcome
Rehearing of the application for certiorari and reinstatement of the notice of change of officers registered on 5th July, 1993
The Court of Appeal had already upheld the certiorari order in Civil Appeal No 166 of 1993 and the Registrar had complied with it; equity will not act in vain
Costs
Appeal allowed only against the order that the appellants pay costs (that costs order was found wrong); the appeal was otherwise dismissed with costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It seems to us that under o 53 r 6, the High Court is first of all, given the discretion to hear an interested party only if it appears to the Court to be a proper person to be heard.
His refusal to hear Mr Jaffer on behalf of the appellants was not only a proper exercise of his discretion but would also have been an exercise in futility.
No decree shall be reversed or substantially varied on account of any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court.
Nobody has a vested right in procedure and a Court, must, at least, at the present day, strive to do substantial justice to the parties, undeterred by technical procedure rules.
this present appeal, except that we allow the appeal against the order of the learned judge that the appellants should pay costs, must be dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.