Child Welfare Society of Kenya v Republic & 2 others; Law Society of Kenya & 8 others (Interested Parties) (Civil Appeal 20 of 2015) [2017] KECA 175 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a Cabinet Secretary's opaque, rushed exemption of a children's charity was made in bad faith and cannot stand.
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 trial court judiciously exercised its discretion before coming to the conclusion that in issuing an order of exemption to CWSK, the minister did not exercise his discretionary power lawfully and judiciously
Key legal issues
#Whether the High Court erred in finding that the Minister improperly exercised his discretion under section 198 of the Children Act in exempting CWSK
The Court of Appeal found no error of principle; the trial court rightly impeached the exemption process, which was opaque, unproven on impracticability, and conducted in bad faith
The Minister's power to exempt was not unlimited; it required demonstrable impracticability or inexpediency established candidly, transparently and accountably. The Minister acted on unsubstantiated complaints by CWSK, denied the Adoption Committee a hearing, entertained an appeal from a non-existent decision, disbanded the committee and published the exemption gazette notice in quick succession. That process violated Article 10 national values and confirmed bad faith, so the certiorari order quashing the exemption order stood.
The applicable appellate standard for interfering with a trial judge's discretionary decision
An appellate court will not interfere with the exercise of discretion by a lower court unless it is shown the judge misdirected himself, misapprehended the facts, took irrelevant or failed to take relevant considerations into account, or arrived at a plainly wrong decision
Restating Mbogo v Shah (De Lestang VP and Newbold P) and United India Insurance v East African Underwriters (Madan JA), the Court held that a Court of Appeal resists substituting its own discretion for that of the trial court. Having found no error of principle in Korir J's exercise of discretion, the Court had no basis to substitute its own discretion for his and dismissed the appeal.
The current constitutional status and scope of judicial review in Kenya
Judicial review in Kenya is constitutionally underpinned in Articles 22, 23 and 47 and the Fair Administrative Action Act; there is one fused system, not two mutually exclusive systems of judicial review
Tracing the expansion of judicial review from the common law triad of illegality, irrationality and procedural impropriety through Nyamu J's expansionist reasoning, the Court endorsed the IEBC v NASA formulation that judicial review is now entrenched in the Constitution. Common law remedies under Order 53 are part of the constitutional remedies grantable under Article 23(3); parties may choose either or both, and neither choice is fatal.
Separation of powers and judicial deference to the executive
Separation of powers requires deference to the repository of a function, but courts retain the last word on the legality and constitutionality of governmental action
Citing Mumo Matemu (adopting Democratic Alliance v President of South Africa) and the Supreme Court's Advisory Opinion on the Interim Independent Electoral Commission, the Court held that while courts should accord the executive sufficient latitude, judicial deference does not prevent judicial review of executive action that distorts the purpose of an Act. The legality of executive action is determined by courts independent of the executive.
Whether the Minister had power under section 198 to exempt CWSK from section 177 of the Children Act
Section 198 contains disjunctive categories creating a third category of exemption for persons 'to whom' the Minister considers application impracticable or inexpedient; the Minister had the power, and there was no cross-appeal against that finding
Affirming Korir J's construction, the Court held that the disjunctive use of 'or' before 'whom' creates a third exemption category distinct from race, tribe, religious group or sect, open to any legal person, subject to the Minister being satisfied that application of the provisions is impracticable or inexpedient. No cross-appeal challenged this, and counsel's attempt to revisit it in submissions was an improper and feeble attempt.
Legal principles established
#- Kenya has one, not two mutually exclusive, systems of judicial review; common law Order 53 review and constitutional/statutory review are complementary.
- An appellate court will not interfere with a discretionary decision of the lower court unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant or failed to take into account relevant considerations, or the decision is plainly wrong.
- A statutory power of exemption, such as under section 198 of the Children Act, must be exercised transparently, accountably and in a manner that promotes the objects of the Act; a process that is opaque, lacks a hearing and proceeds on a non-existent decision is tainted with bad faith and abuse of power and is impeachable.
- The values in Article 10(2) of the Constitution are immediate, enforceable and justiciable and bind all state officers when making or implementing public policy decisions.
Court orders
#- 1.The appeal is dismissed
- 2.Each party shall bear its own costs of the litigation
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Judicial Review application (leave granted 8th May 2014)
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's judicial review decision (Children Act appeals; Constitution of Kenya 2010)
Relief refused
#Allowing the appeal and setting aside the High Court's quashing of the Children (Exemption) Order, 2013
The appeal lacked merit; the trial judge correctly exercised his discretion in finding the Minister's exemption process tainted with bad faith
Costs
As the matter raises public interest issues, each party shall bear its own costs of the litigation.
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.
In the result, this appeal is lacking in merit and we order that it be and is hereby dismissed. As the matter raises public interest issues, each party shall bear its own costs of the litigation.
We hold that Kenya has one and not two mutually exclusive systems for judicial review. The common law and statutory judicial review are complementary and mutually non-exclusive judicial review approaches.
Such process is impeachable, the trial court was right to impeach it, and we so hold.
the values espoused in Article10 (2) are neither aspirational nor progressive; they are immediate, enforceable and justiciable.
In exercising powers granted under the law, a public officer must ensure that the powers are exercised so as to promote the objectives of the law and fulfill the intentions of the lawmaker.
Issues in the judgment
#The judgment's numbering is irregular: the paragraph numbered '5.' contains the text beginning '10.' and '26.' appears twice, indicating a typographical numbering defect in the copy.
The judgment does not state the case number of the appeal or the High Court matter in its opening; the case number field is not identifiable from the judgment text itself.
The name of the Court of Appeal case cited as Mbogo & Another v Shah and Mbogoh & Anor v Shah is rendered inconsistently within the same judgment for what is evidently the same authority.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Child Welfare Society of Kenya v Republic & 2 others; Law Society of Kenya & 8 others (Interested Parties) (Civil Appeal 20 of 2015) [2017] KECA 175 (KLR)", Case Analysis (2017). Court of Appeal Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/175/eng@2017-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.