Republic v Attorney General & another, ex parte Kenya Airline Pilots Associations
The bottom line
#Kenya's Court of Appeal refused to strike out a pilots' union appeal, confirming that technical mistakes like naming the wrong party can be fixed by amendment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether judicial review proceedings are subject to the Government Proceedings Act (cap 40)
- 2.Whether the notice of appeal and appeal were fatally defective for non-service on the Industrial Court
- 3.Whether service on the Attorney General, wrongly joined, constituted service on the Industrial Court
- 4.Whether an appeal should be struck out for joinder of a wrong party as respondent
- 5.Whether the letter applying for proceedings and ruling had to be served on the Industrial Court under rule 81(2)
- 6.Whether the omission of the Kamau affidavit and exhibits from the record of appeal rendered the appeal incurably defective
Key legal issues
#Applicability of the Government Proceedings Act to judicial review
Judicial review proceedings are not subject to the Government Proceedings Act; proceedings against the Industrial Court in certiorari were not proceedings against the Government requiring notice or institution against the Attorney General
Relying on its own decision in Commissioner of Lands v Kunste Hotel Ltd, the court held that prerogative orders are issued in a special jurisdiction outside the ambit of the Government Proceedings Act. Mr Adere's submission that the Industrial Court, being a government institution, could only be sued through the Attorney General under sections 12 and 13 of cap 40 was therefore misplaced and rejected.
Effect of non-service of the notice of appeal on the Industrial Court
The notice of appeal was properly served because it was served on the Attorney General, who had filed a notice of appointment showing he acted for the Industrial Court; the Industrial Court never complained of non-service
Although the Attorney General was wrongly joined and possibly served for the wrong reason, he was in fact served and had appointed an advocate to act for the Industrial Court. Service on the advocate for a person directly affected satisfies rule 76, and the Industrial Court itself raised no complaint, so the appeal could not be struck out on this ground.
Joinder of a wrong party as respondent
A wrong joinder curable by amendment is not a ground for striking out an appeal
The court held that wrongly joining the Attorney General as respondent was an irregularity curable by amendment. The position would have differed had the Attorney General been named in the notice of appeal as a respondent, but on the facts the misjoinder did not go to the substance of the appeal.
Omission of the Kamau affidavit and exhibits from the record of appeal
The affidavit and exhibits were not primary documents for the appeal from Visram J's ruling; they fell under rule 85(1)(k) and could be included by supplementary record
The appeal was against Visram J's refusal to set aside leave and strike out the certiorari motion. The primary documents for that issue were the respondent's notice of motion and Benny Kanyi Waweru's supporting affidavit; the applicant filed no replying affidavit. Kamau's affidavit, filed in support of the certiorari motion, could only qualify under rule 85(1)(k), whose omission is not fatal.
Legal principles established
#- Judicial review proceedings are not subject to the Government Proceedings Act (cap 40)
- Section 17 of the Trade Disputes Act bars appeal or review of Industrial Court decisions
- An appeal should not be struck out for joinder of a wrong respondent where the joinder is curable by amendment
- Rule 81(2) requires the letter applying for proceedings and ruling only to be sent, not served, on the respondent
- Only primary documents under rule 85(1) must be in the record of appeal; their omission is incurable, but rule 85(2A) documents may be added by supplementary record
Court orders
#- 1.The applicant's notice of motion dated 6th February 2002 seeking to strike out the notice of appeal and record of appeal be and is hereby 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
- Misc. Civil Application No 254 of 2001
- Jurisdiction invoked
- Appeal to the Court of Appeal from the High Court's dismissal of the respondent's notice of motion (rules 42(1) and 80 of the Court of Appeal Rules invoked in the striking-out application)
Relief refused
#Striking out the notice of appeal dated 10th August 2001 and the record of appeal (Civil Appeal No 8 of 2002)
Non-service on the Industrial Court was cured by service on the Attorney General acting as the Industrial Court's advocate; joinder of a wrong party is curable by amendment; the omitted affidavit was not a primary document
Costs
Each party shall bear its own costs of the motion
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.
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
#Conflicting dates for the notice of appeal: 10th August 2001 vs 10th August 2002
Conflicting dates for the respondent's notice of motion: 29th March 2002 vs 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 Associations", Case Analysis (2003). Civil Appeal (Application) No 8 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/188/eng@2003-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.