Mohamed A. Malim v Registered Trusteees of the Agricultural Society of Kenya & 33 others [2019] KECA 828 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that judicial review challenges how decisions are made, not whether they are right, and dismissed an election disqualification challenge with costs.
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 Court should interfere with the learned Judge's exercise of discretion in dismissing the judicial review application
- 2.Whether the respondents' decision to disqualify the appellant from contesting the elective posts was unreasonable
- 3.Whether the respondents were biased or actuated by ulterior motive in disqualifying the appellant
- 4.Whether the question of the 9th to 34th respondents' legitimate expectation to vote was res judicata, having been determined in Misc. Applic. No. 13 of 2017
Key legal issues
#Whether judicial review extends to merit review
No. Although the scope of judicial review has widened under the Constitution and the Fair Administrative Action Act, the reviewing court examines the decision-making process, not the merits of the decision.
The Court traced the evolution of judicial review from the Law Reform Act and Order 53 of the Civil Procedure Rules to the constitutionalised rights of fair administrative action, and relied on Darasa Investments and Suchan Investment to hold that the power to remit, not to substitute, means merit review remains the preserve of the administrator.
Whether the disqualification of the appellant for lack of good standing was unreasonable
No. The Society's rules required candidates to be in good standing, and a person convicted of a serious infraction can reasonably be held not to be in good standing; his appointment to the Caretaker Committee did not render the disqualification unreasonable since he was appointed, not elected.
The Court adopted the Wednesbury standard of unreasonableness, found the learned Judge had correctly applied the Society's rules, and noted the appellant never appealed against his reprimand, unlike the 7th and 8th respondents whose appeals were pending.
Whether the respondents were biased or driven by ulterior motive
No. Actual bias was not proved; the differential treatment of the 7th and 8th respondents was explained by their pending appeals, and there was no evidence of imposition of preferred candidates.
The Court endorsed the learned Judge's finding that members present did not protest the election of the nominated officials, that the appellant failed to cite any specific rule or constitutional provision offended, and that no evidence substantiated the ulterior-motive claim.
Whether the 9th to 34th respondents' voting-rights claim was res judicata
Yes. The legitimate expectation to vote had been determined in Misc. Applic. No. 13 of 2017, and in any event the amendment imposing a 3-year membership qualification was evident in the Society's 90th AGM minutes.
The Court saw no reason to interfere with the learned Judge's findings, noting the constitutional amendment was made procedurally and was on record, and that the earlier decision could only be reviewed on appeal.
Legal principles established
#- The development of judicial review in Kenya has not extended to merit review of decisions; judicial review is concerned with the decision-making process, not the merits of the decision
- An appellate court will only interfere with a judge's exercise of discretion where the judge misdirected himself in some matter and arrived at a wrong decision, or was clearly wrong and injustice resulted
- A person convicted of a serious infraction can reasonably be held not to be in good standing even where the rules do not define 'good standing'
- Bias cannot be established by mere claim; actual bias must be proved, and differential treatment is justified where other affected persons had pending appeals
Court orders
#- 1.Appeal dismissed
- 2.Costs to the 1st to the 8th respondents
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 Mombasa
- Misc. Applic. No. 33 of 2017
- Jurisdiction invoked
- First appeal against a ruling of the High Court in judicial review proceedings (rulings on judicial review lie to the Court of Appeal)
Relief refused
#Judicial review orders of certiorari and mandamus quashing the disqualification, quashing the elections and compelling fresh elections
The appeal lacked merit; the learned Judge's discretion was properly exercised and the disqualification was not unreasonable
Costs
Appeal dismissed with costs to the 1st to the 8th respondents
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.
As we have set out above, judicial review is concerned with the decision making process and not the merits of the decision in respect of which the application for judicial review is made.
The power to remit means that decision making on merits is the preserve of the administrator and not the courts.
We are clear in our minds that a person who has been convicted of a serious infraction, like the appellant, can reasonably be held not to be in good standing.
the Applicant must not just claim bias; he must prove that there was actual bias.
Accordingly, the appeal lacks merit and is hereby dismissed with costs to the 1st to the 8th respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed A. Malim v Registered Trusteees of the Agricultural Society of Kenya & 33 others [2019] KECA 828 (KLR)", Case Analysis (2019). Civil Appeal No. 129 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/828/eng@2019-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.