In Re Mukhonye Community Based Organisation [2014] KECA 815 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that judicial review leave requires an arguable case, and a clinic challenging a closure order failed to provide one.
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 applied the correct test in declining leave to apply for judicial review
- 2.Whether the appellant demonstrated an arguable case entitling it to leave to commence judicial review proceedings
Key legal issues
#The test for granting leave to commence judicial review proceedings
Leave should be granted where, on the material available and without going into the matter in depth, there is an arguable case; leave is not granted as a matter of course and the court must examine the material placed before it.
The court adopted its own decision in Njuguna v Minister for Agriculture and the Ugandan Court of Appeal decision in Kikonda Butema Farms Ltd. It confirmed that the trial Judge had the correct criterion in mind, having cited both cases. The court then applied the test, reviewing the inspection report and the appellant's response, and found the appellant had not answered the findings of ill-equipment, unqualified staff, absence of licence, patient records and financial records, and dispensing of expired drugs. On that material no arguable case was demonstrated.
Whether the High Court erred in finding the appellant lacked an arguable case and locus standi
The High Court did not err; on the material before it the appellant's facility was operated by unqualified persons and the appellant failed to rebut the inspection findings, so the refusal of leave was properly founded.
The Court of Appeal independently reviewed the same material placed before the High Court. The appellant's secretary exhibited academic qualifications of personnel but no letters of appointment, no previous licence, no patient records, no financial records, and did not answer charges of malpractice and dispensing expired drugs. The court found the appellant did not answer the complaint of operating illegally without qualified personnel or infrastructure, and could not fault the learned Judge.
Legal principles established
#- An applicant for leave to commence judicial review proceedings need only show an arguable case; the judge should not go into the matter in depth, but the granting of leave is not a matter of course.
- In considering an application for leave, the court is enjoined to examine the statement of facts, the accompanying affidavit, annexures and submissions.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The appellant shall pay the costs of the appeal to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Busia
- Busia HC Misc App No. 130 of 2012
- Jurisdiction invoked
- First appeal from the High Court under the Court of Appeal's appellate jurisdiction (Order 53 judicial review leave ruling challenged on appeal)
Relief refused
#Leave to apply for judicial review orders of certiorari, prohibition and mandamus
The appellant failed to demonstrate an arguable case; the material before the court showed the facility was operated by unqualified persons without infrastructure, licence, patient or financial records
Costs
Costs of the appeal shall be paid to the respondent by the appellant
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.
It cannot be denied that leave should be granted, if on the material available, the court considers without going into the matter in depth, that there is an arguable case for granting leave.
The court is enjoined to look at the statement of facts, the accompanying affidavit, any annextures exhibited and any submissions made before granting leave.
In the result the appeal is for dismissal in its entirety and we so order. Costs of the appeal shall be paid to the respondent by the appellant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In Re Mukhonye Community Based Organisation [2014] KECA 815 (KLR)", Case Analysis (2014). Civil Appeal No. 22 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/815/eng@2014-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.