Republic v 1.the Attorney General
The bottom line
#Kenya's Court of Appeal confirmed the Government lawfully reconstituted Kenya Seed Company's management because the company was, in substance, a State Corporation.
What this practically means
#Executive summary
#Key legal issues
#Validity of leave and applicability of section 99 of the Civil Procedure Act to judicial review proceedings
The order made by Tanui J on 31 December 2003, though imperfectly worded, granted leave; the correction of 12 January 2004 under section 99 was valid, took effect retrospectively from the original date, and section 99 applies to judicial review proceedings.
The application before Tanui J was expressly for leave under Order 53 rule 1(1), and counsel's submissions laid the basis for leave. The words of the order made no sense and cried out for correction. Section 99 is a codification of the common law slip rule, operates as part of the court's inherent jurisdiction, and applies in all civil courts; Order 53 was itself enacted under section 81 of the Civil Procedure Act. The correction went back to the date of the original order and gave effect to the Judge's intention, evidenced by the grant of stay operating pursuant to leave. The Kunste case was of little relevance as it did not deal with the Civil Procedure Act.
Whether KSC was a State Corporation
Up to the contested 2001 floatation of new shares, KSC was in all probability a State Corporation, being a subsidiary of ADC and controlled by a State Corporation; the President and the Minister were therefore legally entitled to act.
ADC, a wholly Government-owned statutory body, held 53% of KSC's equity, making KSC a subsidiary of a State Corporation under section 154(1) of the Companies Act and thus a State Corporation under section 2(b) and 2(d) of the State Corporations Act. The company's own conduct, board minutes, AGM explanations, subjection of accounts to the Public Accounts Committee and reliance on Government approval for share issues all acknowledged that status. The floatation of 2001 without ministerial approval and Treasury concurrence under section 11(2) precipitated the dispute, but for purposes of the public-law remedies sought the court found no basis for faulting the respondents.
Validity of the purported 1994 presidential exemption
The purported exemption by Legal Notice No. 495/94 was a nullity and of no legal consequence; the President had no power of exemption under the Act as then constituted.
Section 2 of the Act, invoked in the notice, is merely the interpretation section and confers no power to exempt. The express power to exempt was only introduced by section 5A of Act No. 2/02 amending the original Act. Before that amendment the President could only declare by Gazette notice that a body corporate was not a State Corporation, and no such lawful declaration existed. In any event, KSC continued to act as a State Corporation in its correspondence, deeds and conduct even after the purported exemption.
Whether the discretionary judicial review remedies should issue
Certiorari, prohibition and mandamus were all properly refused; the superior court's conclusions on the three prayers were agreed with.
Certiorari would not issue because on a balance of probability KSC was a State Corporation and the Presidential and Ministerial appointments had legal basis. Prohibition is directed at preventing future action and is powerless against a decision already made. Mandamus compels performance of a public duty and the Companies Act imposed no duty on the Minister which he had failed to perform. The shareholding disputes within the company could be fought in other, more appropriate fora, the present application being in the realm of public law seeking discretionary remedies.
Legal principles established
#- Section 99 of the Civil Procedure Act (the slip rule) applies to judicial review proceedings and permits correction of an accidental slip at any time, provided the correction gives effect to the intention of the court and does not go to the substance of the judgment or order.
- Correction under the slip rule is impermissible where it would amount to the court sitting on appeal on its own decision, redoing the case, exercising an independent discretion, or altering the substance of the order.
- A company incorporated under the Companies Act which is controlled by a State Corporation, or which is a subsidiary of a State Corporation, falls within the definition of a State Corporation under section 2 of the State Corporations Act.
- The power to exempt bodies from the State Corporations Act was only introduced by section 5A of Act No. 2/02; prior to that amendment the President had no lawful power to exempt, and a purported exemption was a nullity void ab initio.
Court orders
#- 1.The appeal is dismissed
- 2.The ex parte appellants shall bear two thirds of the costs, both in the Court of Appeal and in the court below
- On appeal from
- High Court of Kenya at Eldoret
- Kitale H.C.Misc. Appl. No. 1 of 2004
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court exercising judicial review jurisdiction (Order 53, Civil Procedure Rules; Law Reform Act, Cap 26)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v 1.the Attorney General", Case Analysis (2010). Civil Appeal No. 137 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/23/eng@2010-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.