Peter Gitahi Kamaitha v Secretary, Public Service Commission, The Town Clerk, Nyeri Municipal Council & The Hon. Attorney General
The bottom line
#A Kenyan court threw out a dismissed worker's challenge over paperwork errors, showing judicial review cases fail on strict technicalities before the merits are even heard.
What this practically means
#Executive summary
#Key legal issues
#Intitulement of judicial review motion
A substantive judicial review motion brought in the applicant's own name rather than the Republic is incurably defective and must be struck out
Relying on Farmers Bus Service and Pagrex International, the court held prerogative orders issue in the name of the Republic. Boyles v Gachure on curable procedural error did not apply as it was not a judicial review matter, and no leave to amend the intitulement had been sought.
Contents of the statutory statement
The statutory statement must contain only the applicant's name and description, relief sought and grounds; facts belong in the verifying affidavit
Citing the Court of Appeal in Kenya Revenue Authority v Owaki and R v Wandsworth, the court found the applicant's statement omitted the relief and grounds and improperly embedded facts, breaching mandatory Order LIII rule 1 requirements and rendering it liable to be struck out.
Citation of the Law Reform Act
Failure to cite section 8(1) and (2) of the Law Reform Act renders a judicial review motion incompetent; the rubric 'all other enabling provisions of law' cannot cure it
Section 8 donates the High Court's judicial review jurisdiction. Since judicial review is a special jurisdiction, a litigant who knows he seeks certiorari and mandamus cannot rely on a general rubric to avoid expressly citing the source of the court's power.
Overriding objective
Sections 1A and 1B of the Civil Procedure Act do not assist a judicial review applicant because judicial review is governed strictly by Order LIII
Although the court acknowledged the overriding objective introduced in July 2009, it held judicial review is a special jurisdiction neither civil nor criminal, so the principles of substantial justice and prejudice are irrelevant considerations in that forum.
Legal principles established
#- Judicial review applications must be instituted in the name of the Republic, not the individual applicant
- Judicial review is a special jurisdiction, neither civil nor criminal, governed strictly by Order LIII; other Civil Procedure Act provisions are inapplicable
- An application for judicial review must expressly cite section 8 of the Law Reform Act, which donates jurisdiction; failure renders it fatally defective
- A supporting affidavit to the substantive motion sworn before leave was granted is incompetent
Court orders
#- 1.The applicant's Notice of Motion dated 12th February 2002 is struck out with costs to the respondents
- Jurisdiction invoked
- Section 8(1) and (2) of the Law Reform Act (judicial review jurisdiction of the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Gitahi Kamaitha v Secretary, Public Service Commission, The Town Clerk, Nyeri Municipal Council & The Hon. Attorney General", Case Analysis (2010). Miscellaneous Civil Application 22 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/491/eng@2010-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.