John Macharia Gichigi v Commissioner of Police (Civil Appeal 70 of 2015) (Civ) [2017] KECA 188 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a judicial review case dismissed for lack of attendance is not final, allowing it to be revived and heard.
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 had jurisdiction to set aside its orders made on the 16th day of March, 2009
- 2.Whether the reliefs sought on appeal by the appellant are available
Key legal issues
#Whether an order dismissing a judicial review Notice of Motion for want of prosecution is a final order under section 8(3) of the Law Reform Act
It is not a final order; it is a default order amenable to recall, review or setting aside by the issuing court, until challenged or left unchallenged.
The Court accepted Nyamu J's reasoning in the Fountain Enterprises case that section 8(3), as read with section 8(5), makes final only orders issued with finality, namely mandamus, prohibition and certiorari properly granted. A dismissal for non-attendance is a default order; it becomes final only where no challenge is made. Dulu J therefore misapprehended his own default order of 16th March 2009 as final and wrongly declined jurisdiction to set it aside, causing hardship and injustice to the appellant.
Whether the Court of Appeal should interfere with the High Court's exercise of discretion
The Court may interfere where the judge misapprehended the facts or law and arrived at a plainly wrong decision; such an error was established here.
Restating Mbogo v Shah, Newbold P and Madan JA, the Court noted it will not interfere with a discretionary decision merely because it would have weighed factors differently, but may do so where the judge misdirected himself, misapprehended the facts, took into account irrelevant or failed to take into account relevant considerations, or was plainly wrong. Having found the judge erred in treating the default order as final, the Court concluded there was misdirection resulting in injustice warranting interference.
Whether final orders of mandamus, prohibition and certiorari are amenable to recall, review or setting aside
Orders issued with finality in the exercise of judicial review jurisdiction are not amenable to recall, review and setting aside.
The Court agreed with both counsel and the trial judge that judicial review is a special jurisdiction neither civil nor criminal. Orders issued with finality in that jurisdiction - mandamus, prohibition and certiorari - cannot be recalled, reviewed or set aside, consistent with Commissioner of Lands v Kunste Hotel and Biren Amritlal Shah v Republic. This distinguishes final prerogative orders from default orders, which retain the court's supervisory reach.
Legal principles established
#- Judicial review jurisdiction is a special jurisdiction which is neither civil nor criminal, and Civil Procedure Act and Rules provisions do not apply to judicial review proceedings.
- A default order dismissing a judicial review notice of motion for want of prosecution is not a final order under section 8(3) of the Law Reform Act and remains amenable to recall, review or setting aside by the issuing court.
- The power to recall, review or set aside non-final judicial review orders must be exercised very sparingly and only in very clear-cut cases.
Court orders
#- 1.Appeal allowed
- 2.Orders made by the learned Judge on 3rd November 2009 set aside and substituted with an order allowing the appellant's application dated 19th March 2009
- 3.Matter remitted to the High Court for hearing and disposal of the appellant's substantive Notice of Motion for Judicial Review dated 25th June 2008 on priority basis
- 4.Appellant to have costs of the appeal and of the proceedings before the court below
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 Nairobi
- H.C. Misc. Application No. 296 of 2008
- Jurisdiction invoked
- Appeal to the Court of Appeal under section 8(5) of the Law Reform Act (Cap 26) from a judicial review matter
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.
we allow the appeal, set aside the orders made by the learned Judge on the 3 rd day of November, 2009, and substitute therefor an order allowing the appellant's application dated the 19 th day of the March, 2009.
We remit the matter back to the High Court for the hearing and disposal of the appellant's substantive Notice of Motion for Judicial Review dated the 25th day of June 2008 on priority basis.
a default order granted in the exercise of the Judicial review Jurisdiction is not a final order in terms of section 8(3) as read with section 8(5) of the Act and is therefore amenable to interference by the issuing court
the exercise of the power of recall, review and setting aside of orders not issued in finality under the Judicial review Jurisdiction is a very restricted jurisdiction and will only be exercised very sparingly and in very clearcut cases
It is well settled that this Court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong
Issues in the judgment
#The judgment records the High Court's citation of section 8(3) with an evident typographical error in the quoted text: "8(30 No return shall be made to any such order" - the subsection is rendered as "8(30".
The judgment spells the same party case differently in different places - "Kunste Hotel Ltd" when cited by the court and "Kinsté Hotel Ltd" rendered "Kinste Hotel Ltd" in the Court's own reference - creating an internal inconsistency in the authority's name.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Macharia Gichigi v Commissioner of Police (Civil Appeal 70 of 2015) (Civ) [2017] KECA 188 (KLR)", Case Analysis (2017). Civil Appeal No. 70 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/188/eng@2017-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.