Centre for Peace and Democracy (CEPAD) Board of Directors v Non-Governmental Organizations Co-Ordination Board [2014] KECA 397 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you cannot swap the applicant in a judicial review case after getting permission, and the entire case collapsed.
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 issues raised in the preliminary objection were res judicata by reason of the fact that leave had already been granted ex parte
- 2.Whether the defect in the statutory statement, cured by amendment substituting the applicant, was a mere typographical or procedural error
- 3.Whether leave to amend a statutory statement can extend to substituting the applicant in judicial review proceedings
- 4.Whether the learned Judge of the High Court considered extraneous matters and irrelevant authorities
Key legal issues
#Res judicata at the ex parte leave stage of judicial review
The plea of res judicata was unavailable because the leave proceedings were ex parte and the respondent neither denied nor admitted anything; the challenge to the amended statutory statement could only arise upon service of the amendment.
Section 7 of the Civil Procedure Act and its Explanation (3) require that the matter be alleged by one party and denied or admitted by the other in a former suit. Order 53 rule 1(2) mandatorily requires ex parte hearing of the leave application, so the respondent had no opportunity to participate. Further, under Order 53 rule 4(1), the statement accompanying the leave application is the same statement relied on at the substantive hearing, so a complaint against the amended statement is not a matter heard and finally decided at the leave stage.
Whether the amendment substituting the applicant was curable
The amendment was not typographical or procedural; it was a fundamental defect going to the root of the motion, and Article 159(2) could not come to the appellant's aid.
The original statement described Michael Juma Otieno as the applicant while the ex parte application described CEPAD; the two were not in tandem, and had the court scrutinised them it would have declined leave. The applicant is the central focus of an Order 53 application, and the grieving party cannot be changed after leave is granted because that change invalidates the accompanying documents which must be the same for both the leave application and the substantive motion. Article 159(2) on substantive justice therefore could not save the motion.
Alleged consideration of extraneous matters by the High Court
The complaint was without merit; the learned Judge considered only the preliminary objection grounds, the requirements of Order 53, the record, submissions and cases cited, and properly applied the principles to the matter.
The Court of Appeal reviewed the record and the ruling and could not identify any extraneous matters or irrelevant authorities. The Judge had examined the grounds of the preliminary objection, the requirements of Order 53, the ex parte proceedings, the submissions, the cited cases and their principles, and applied them to the matter. What the appellant lamented as error was in fact a detailed and correct analysis; the complaint was absolutely without merit.
Legal principles established
#- Leave granted ex parte at the judicial review leave stage cannot found a plea of res judicata because the respondent has had no opportunity to deny or admit anything; challenges to the statutory statement can only arise once it is filed and served with the substantive motion.
- Leave to amend a statutory statement under Order 53 does not extend to substituting the applicant; the applicant is the central focus of the application and the same documents must support both the application for leave and the substantive motion.
- A discrepancy as to the identity of the applicant in judicial review proceedings is fundamental and fatal, and Article 159(2) of the Constitution cannot cure it.
Court orders
#- 1.The appeal be and is hereby dismissed with costs to the respondent
- 2.The interested parties are not entitled to any costs as their status was not made clear
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- Misc. Appl. No. 7 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal against the ruling and order of the High Court (appeal as of right from the High Court's decision striking out the substantive notice of motion)
Relief refused
#Setting aside the High Court order striking out the substantive notice of motion
The defect in the statutory statement went to the root of the substantive notice of motion; the grieving party may not be changed after leave has been granted
Costs for the interested parties
Their status in the appeal was never made clear
Costs
Appeal dismissed with costs thereof to the respondent; the interested parties, whose status was not made clear, are not entitled to any costs.
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.
The grieving party in our view, may not be changed after leave to commence proceedings for orders of judicial review has been granted, because such change would invalidate the accompanying documents which should be the same for both the application for leave and the application for the substantive order.
The argument that issues raised at the application for leave stage were res judicata is therefore, in our view, clearly misconceived.
That being our view of the matter, we order that this appeal be and is hereby dismissed with costs thereof to the respondent.
The status of the interested parties in these appeal was not made clear. They are therefore not entitled to any costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Centre for Peace and Democracy (CEPAD) Board of Directors v Non-Governmental Organizations Co-Ordination Board [2014] KECA 397 (KLR)", Case Analysis (2014). Civil Appeal No. 261 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/397/eng@2014-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.