Ongera v Director of Public Prosecutions & another (Civil Appeal 312 of 2017) [2018] KECA 588 (KLR)
The bottom line
#Kenya's Court of Appeal ruled judges must not decide judicial review cases at the permission stage, reviving an auditor's challenge to his prosecution.
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 judge acted judiciously in the exercise of her discretion in refusing leave to apply for judicial review orders of certiorari and prohibition
- 2.Whether the grant of an interim stay order operated as a grant of leave, rendering subsequent proceedings a nullity
- 3.Whether the expanded constitutional and statutory scope of judicial review (fair administrative action and fair trial rights) was taken into account by the trial court
Key legal issues
#Test for appellate interference with a discretionary decision
The Court of Appeal may interfere only where the judge misdirected himself in law, misapprehended the facts, took into account considerations he should not have, failed to take account of considerations he should have, or where the decision is plainly wrong.
The Court adopted Madan, JA's five-limb test in United India Insurance Co. Ltd & 2 Others v East African Underwriters (Kenya) Ltd, citing also Mbogo & Anor v Shah. Having re-examined the record, the Court found the trial judge had made conclusive findings on the merits at the leave stage, an error warranting interference.
Whether an interim stay order operates as a grant of leave
It does not. The grant of leave operates as a stay by express provision, but there is no corresponding provision in reverse, and the interim stay issued here was an exercise of the court's inherent power to preserve the subject matter pending determination.
Order 53 Rule 1 expressly provides that leave operates as a stay; different considerations govern each limb, and under the proviso the court may hear them separately. The interim order of 14th February 2017 was a preservation measure, not leave; the appellant's submission was rejected as disingenuous.
Unified constitutional and common law system of judicial review
Judicial review in Kenya has constitutional underpinning in Articles 22 and 23 read with Article 47 and the Fair Administrative Action Act; common law Order 53 remedies are now fused with constitutional and statutory remedies in one system.
The Court endorsed its own decision in IEBC v NASA and authorities by Mativo, J and Odunga, J, holding that the Constitution of 2010 elevated judicial review beyond common law technicalities, and a party may choose the Order 53 route, the constitutional route, or both.
Scope of inquiry at the leave stage of judicial review
The purpose of leave is to filter out frivolous, vexatious or hopeless applications; the court must determine arguability without going into the matter in depth, and it was presumptive for the trial judge to make final determinations of the issues at that stage.
The Court found the trial judge, having correctly stated the low threshold for leave, paradoxically conducted a 23-page analysis of facts and law and made conclusive findings before the substantive application had been filed, and failed to consider the constitutional provisions and the Fair Administrative Actions Act cited.
Arguability of breach of fair administrative action and fair trial rights
There was an arguable case on whether the appellant's fair administrative action and fair trial rights were threatened with breach, sufficient to warrant the grant of leave, without the appellate court prejudging the substantive application.
The Court held that the application focused on fair administrative action and trial rights but the trial court took a narrow view, referring only to the constitutional mandates of EACC and the DPP. Since the court did not know what conclusion on arguability would have been reached had the constitutional provisions been considered, its discretion was properly interfered with.
Legal principles established
#- An appellate court will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong.
- The grant of leave in judicial review operates as a stay under Order 53 Rule 1 of the Civil Procedure Rules, but the converse does not hold: a grant of an interim stay does not operate as a grant of leave.
- Kenya has one, unified system of judicial review: common law Order 53 remedies are fused with constitutional and statutory remedies under Articles 22, 23, 47 and the Fair Administrative Action Act.
- On an application for leave to apply for judicial review, the court must not go into the matter in depth or make conclusive findings on the merits; it need only be satisfied, without delving into the details, that there is an arguable case.
- In determining arguability at the leave stage, the court must consider the constitutional and statutory provisions relied upon, including fair administrative action and fair trial rights under Articles 47 and 50.
Court orders
#- 1.Appeal allowed
- 2.Ruling of Achode, J made on 20th July, 2017 set aside
- 3.Substituted therefor an order granting the appellant's application for leave in terms of prayers (i), (ii) and (iii) of the Chamber Summons dated 14th February, 2017
- 4.The substantive motion for Judicial Review to be filed in the High Court within 21 days of the judgment and disposed of expeditiously
- 5.Appellant to have costs of the appeal; costs before the High Court to abide the outcome of the Judicial Review application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal against the exercise of the High Court's judicial review leave discretion under Order 53 Rules 1 and 2 of the Civil Procedure Rules; judicial review underpinning in Articles 22, 23 and 47 of the Constitution
Relief refused
#Costs of the High Court proceedings in favour of the appellant
The High Court costs were made to abide the outcome of the Judicial Review application rather than being awarded outright
Costs
The appellant shall have the costs of this appeal but the costs before the High Court shall abide the outcome of the Judicial Review application.
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 this appeal and set aside the ruling of Achode, J made on 20th July, 2017. We substitute therefor an order granting the appellant's application for leave in terms of prayers (i), (ii), and (iii) of the 'Chamber Summons' dated 14th February, 2017.
The substantive motion for Judicial Review shall be filed in the High Court within 21 days of this judgment and disposed of expeditiously.
The fusion of common law judicial review remedies into the constitutional and statutory review remedies imply that Kenya has one and not two mutually exclusive systems for judicial review.
if on the material available the court considers, without goinginto the matter in depth, that there is an arguable case for granting the relief sought by the applicant.
The Court of Appeal will not interfere with a discretionary decision of the judge appealed from.
The provision that the grant of leave operates as stay is an express provision under Order 53 Rule1 of the CPR. There is no express provision in reverse order and for good reason;
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongera v Director of Public Prosecutions & another (Civil Appeal 312 of 2017) [2018] KECA 588 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/588/eng@2018-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.