Republic v Attorney General & another Ex-Parte Kenya Airline Pilots Association [2003] KECA 19 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out Kenya Airline Pilots Association's appeal, confirming that most appeal paperwork defects can be fixed rather than ending the case.
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 notice of appeal should be struck out for failure to serve the Industrial Court, a person directly affected by the appeal, under rule 76 of the Court's Rules
- 2.Whether service on the Attorney General constituted service on the Industrial Court, given the provisions of sections 12 and 13 of the Government Proceedings Act
- 3.Whether the appeal should be struck out on the ground that the Attorney General was wrongly joined as a respondent
- 4.Whether the appeal was filed out of time because the letter applying for proceedings and the ruling was not served on the Industrial Court
- 5.Whether the failure to include the affidavit of Lewis Gacuca Kamau and its exhibits in the record of appeal rendered the appeal incurably defective under rule 85(1)
Key legal issues
#Whether service of the notice of appeal on the Attorney General amounted to service on the Industrial Court
Yes — although the Attorney General was wrongly joined as a party, he had filed a notice of appointment showing he was appointed to act for the Industrial Court, so service on him was service on the Industrial Court's advocate
The respondent argued, relying on sections 12 and 13 of the Government Proceedings Act, that proceedings against the Industrial Court were proceedings against the Government and thus against the Attorney General. The court rejected this, holding on the authority of Kunste Hotel that judicial review proceedings fall outside that Act. However, the Attorney General was in fact served and had filed a notice of appointment as advocate for the Industrial Court, which never complained of non-service. Service on the appointed advocate sufficed.
Whether judicial review proceedings against a government institution are subject to the Government Proceedings Act
No — following Commissioner of Lands v Kunste Hotel Ltd, prerogative orders are issued in a special jurisdiction outside the Government Proceedings Act, so reliance on sections 12 and 13 of that Act was misplaced
The court adopted its earlier reasoning in Kunste Hotel, where it held that by virtue of section 7 of the Administration of Justice (Miscellaneous Provisions) Act, 1938 (applicable via section 8(2) of the Law Reform Act), the High Court in exercising the power to issue certiorari exercises a special jurisdiction that is neither civil nor criminal, and hence outside section 13A of the Government Proceedings Act. The same reasoning defeats reliance on sections 12 and 13.
Whether joinder of the Attorney General as a wrong party justified striking out the appeal
No — joinder of a wrong party is an irregularity curable by amendment; the position would differ only if the Attorney General had been named as a respondent in the notice of appeal
The court distinguished between a defect in the notice of appeal itself and a misjoinder in the framing of the appeal. Since the notice of appeal did not name the Attorney General as a respondent, the misjoinder in the appeal documents was a curable irregularity that did not go to the competency of the appeal and could not justify striking out.
Whether the omission of the Kamau affidavit and exhibits from the record of appeal rendered the appeal incurably defective
No — the affidavit was filed in support of the certiorari motion, not in opposition to the motion to set aside leave, so it was not a primary document in the appeal against Visram J's ruling; documents under rule 85(1)(k) may be added by supplementary record
The appeal is against the order of Visram J refusing to set aside the ex parte leave and to strike out the notice of motion. The pleadings before Visram J on that issue were the respondent's notice of motion and the Benny Kanyi Waweru affidavit; the applicant filed no replying affidavit. Kamau's affidavit, supporting the later substantive motion, could at most be a rule 85(1)(k) document includable by supplementary record.
Whether the appeal was filed out of time for failure to serve the letter applying for proceedings on the Industrial Court
No — rule 81(2) requires only that a copy of the letter be sent, not served, and the copy was sent to the Attorney General with no evidence it was not received
The court construed rule 81(2) literally: the rule uses the word 'sent' rather than 'served'. A copy of the respondent's letter applying for proceedings and the ruling was sent to the Attorney General's office, and there was no evidence it was not received there, so time was properly stopped and the appeal was filed in time.
Legal principles established
#- Judicial review proceedings are not subject to the provisions of the Government Proceedings Act, including its provisions on suits against the Government and notice requirements
- Striking out an appeal for non-service on a person directly affected is refused where service was effected on that person's appointed advocate, and joinder of a wrong party as respondent is a curable irregularity curable by amendment
- Under rule 81(2) of the Court of Appeal Rules, a copy of the letter applying for proceedings and the ruling need only be sent, not served, on the respondent
- Only primary documents under rule 85(1) must be included in the record of appeal; omission of non-primary documents falling under rule 85(1)(k) does not render the appeal incurably defective and they may be included by way of a supplementary record
Court orders
#- 1.The applicant's notice of motion dated 6th February, 2002 seeking to strike out the notice of appeal and the record of appeal is dismissed
- 2.Each party shall bear its own costs of the motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Civil Application No 254 of 2001 (Republic v The Industrial Court ex-parte Kenya Airways Ltd)
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the appeal lodged pursuant to the notice of appeal dated 10th August, 2001; motion brought under rules 42(1) and 80 of the Court of Appeal Rules
Relief refused
#Striking out the notice of appeal dated 10th August, 2001 and the record of appeal in Civil Appeal No 8 of 2002
The notice of appeal was effectively served on the Industrial Court through its appointed advocate, the Attorney General; joinder of a wrong party is a curable irregularity; the letter applying for proceedings need only be sent, not served; and the omitted affidavit was not a primary document under rule 85(1)
Costs
Each party shall bear its own costs of the motion; the respondent was not entitled to costs because it was the respondent who, without any basis in law, brought in the Attorney General as a party
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.
A short summary of this passage must be that judicial review proceedings are not subject to the provisions contained in the Government Proceedings Act.
Nor do we think that the appeal should be struck out on the ground that a wrong party has been joined as a respondent. That is a matter which is curable by an amendment.
The requirement in rule 81(2) of the rules is not that a copy of the letter applying for proceedings and ruling be “served” on the respondent; the requirement is only that the copy be “sent” to the respondent.
Documents which fall under paragraph (k) of rule 85(1) can be put in by way of a supplementary record and the failure to include them does not render an appeal incurably defective.
We accordingly order that the said notice of motion be and is hereby dismissed.
In the circumstances, the fair order to make as regards the costs of motion is and shall be that each party shall, bear its costs of the motion.
Issues in the judgment
#The judgment contains an apparent internal date inconsistency regarding the notice of appeal, stating it was lodged on 10th August, 2001 but later describing it as 'the notice of appeal lodged by the respondent on 10th August, 2002'
The judgment gives inconsistent dates for the filing of the applicant's notice of motion for certiorari, first 29th March, 2002 and later 29th March, 2001
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & another Ex-Parte Kenya Airline Pilots Association [2003] KECA 19 (KLR)", Case Analysis (2003). Civil Appeal (strike-out motion) — motion dated 6th February, 2002 in Civil Appeal No 8 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/19/eng@2003-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.