Republic v Attorney General & Kenya Airways Limited (Interested Party)
The bottom line
#Kenya's Court of Appeal confirmed that judicial review leave is granted on an arguable case alone, and ouster clauses cannot block review where a tribunal exceeds its powers.
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 of the superior court (Visram, J.) was right in dismissing the application to set aside the ex parte order granting leave for certiorari
- 2.Whether the High Court has jurisdiction to entertain certiorari proceedings in respect of decisions of the Industrial Court notwithstanding section 17(2) of the Trade Disputes Act
- 3.Whether the Judge erred in considering evidence and proceedings before the Industrial Court in finding excess of jurisdiction
Key legal issues
#Whether the High Court has jurisdiction to entertain certiorari in respect of Industrial Court decisions despite the ouster in section 17(2) of the Trade Disputes Act
The Court declined to make a final determination, holding only that at the leave stage a prima facie case of excess of jurisdiction sufficed notwithstanding the ouster clause
The Court relied on de Smith, Woolf & Jowell on 'No certiorari' clauses, noting English courts persistently declined to construe ouster clauses literally where an inferior tribunal exceeded its authority. It deliberately refrained from deciding subordination or the full effect of section 17, leaving those to the substantive hearing before the High Court.
Whether Visram, J. erred in dismissing the application to set aside the ex parte leave order
No error: the application to set aside leave is a limited jurisdiction exercised sparingly, and a prima facie arguable case had been shown
Following Aga Khan Education Service Kenya v Republic and Samuel Muchiri Wanjuguna, once an arguable case is shown leave is granted without depth of inquiry; the subsequent setting-aside application is limited and sparingly exercised. Visram, J. was entitled to consider the Industrial Court evidence in finding prima facie excess of jurisdiction.
Whether the Judge erred in being influenced by evidence and proceedings before the Industrial Court
No substance in the ground; the Judge was entitled to consider that evidence
The appellant argued the Judge should not have looked at the Industrial Court record in determining excess of jurisdiction. The Court found the Judge had to consider the evidence and proceedings in the Industrial Court to assess whether there was prima facie excess of jurisdiction, and was perfectly entitled to do so.
Legal principles established
#- Once an arguable case is shown, leave under Order 53 is to be granted without going into the matter in depth; the appropriate challenge to leave is an application to set it aside, a limited jurisdiction exercised sparingly
- An application to set aside ex parte leave is a limited jurisdiction to be exercised sparingly and on very clear-cut cases
- A prima facie case at the leave stage does not mean a case that will ultimately succeed
- Where an inferior tribunal acts in excess of jurisdiction, an ouster clause such as section 17(2) of the Trade Disputes Act does not necessarily preclude High Court intervention
- If the judge who granted leave cannot sit, another judge of the superior court is entitled to hear the application to set aside the grant of leave
Court orders
#- 1.This appeal be and is hereby dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Miscellaneous Civil Application No. 254 of 2001
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the ruling of the High Court in a judicial review matter (Order LIII, Civil Procedure Rules)
Relief refused
#Setting aside the ruling of Visram, J. dismissing the application to set aside the ex parte leave order
The Judge was exercising limited jurisdiction, to be exercised sparingly, and was entitled to find a prima facie case had been made
Costs
Appeal dismissed with costs (to the interested party, Kenya Airways Limited, as the prevailing party below and on appeal)
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.
So once there is an arguable case, leave is to be granted and the court at that stage is not called upon to go into the matter in depth.
A prima facie case does not and cannot mean a case that will, in the end, succeed.
We accordingly order that this appeal be and is hereby dismissed with costs.
What we have decided in this appeal is that Osiemo, J. was entitled to grant leave as he did since a prima facie case had been presented to him to warrant the order he made.
We have not made any findings as to whether the Industrial Court is subordinate to the High Court. That will be dealt with by the High Court during the hearing of the substantive application.
Issues in the judgment
#Aga Khan Education Service Kenya cited as Civil Appeal No. 257 of 2003, an apparent date inconsistency since this appeal is No. 8 of 2002 decided in 2006
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & Kenya Airways Limited (Interested Party)", Case Analysis (2006). Civil Appeal 8 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/376/eng@2006-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.