Geoffrey Sheridan Ouma v Public Service Commission of Kenya [2019] KECA 861 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the High Court cannot review its own judicial review orders — you must appeal to the Court of Appeal instead, promptly.
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 High Court has jurisdiction to review its own orders made in the exercise of its judicial review jurisdiction under the Law Reform Act
- 2.Whether Odunga J erred in dismissing the appellant's application for review of the judgment of Wendoh J
- 3.Whether the appellant's unexplained delay of two and a half years and failure to show error apparent on the face of the record justified review
Key legal issues
#Jurisdiction of the High Court to review its own judicial review orders
The High Court cannot review its own orders made in judicial review; section 8(5) of the Law Reform Act provides for appeal to the Court of Appeal instead.
Relying on Biren Amritlal Shah v Republic, the Court held that although a court may review orders made in its ordinary jurisdiction under section 80 of the Civil Procedure Act, judicial review is a special jurisdiction under the Law Reform Act, whose section 8(5) channels challenges to the Court of Appeal by appeal, not review.
Whether the discretionary refusal of review should be disturbed
The Court will not interfere with a discretionary decision unless there is misdirection in law, misapprehension of facts, wrong considerations, omitted considerations, or the decision is plainly wrong; none was shown.
Applying United India Insurance Co Ltd v East African Underwriters (Kenya) Ltd, the Court found no misdirection or misapprehension by Odunga J. The application was properly dismissed since review under Order 45 requires new and important matter, error apparent on the face of the record, or other sufficient reason, none of which existed.
Delay and the mischaracterisation of an appeal as a review
A prolonged unexplained delay of two and a half years, absence of new evidence, and absence of error apparent on the face of the record disentitled the applicant to review; the grounds pleaded were appellate grounds.
The appellant took two and a half years to apply for review without explanation, produced no new evidence and showed no error apparent on the face of the record. His complaint that the trial court misapprehended the Public Service Act was properly a ground of appeal, confirming Odunga J's finding that the application was an appeal couched as a review.
Legal principles established
#- The High Court has no jurisdiction to review its own orders made in the exercise of its judicial review jurisdiction under the Law Reform Act; the remedy is an appeal to the Court of Appeal.
- Final orders of mandamus, prohibition and certiorari issued in judicial review are not amenable to recall, review or setting aside.
- Grounds asserting a trial court misapprehended a statute or reached an erroneous legal conclusion are grounds of appeal, not grounds for review.
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- HCCC No 459 of 2004
- Jurisdiction invoked
- First appeal to the Court of Appeal under section 8(5) of the Law Reform Act (orders made in the exercise of the High Court's civil jurisdiction over judicial review)
Relief refused
#Setting aside of the judgment of Wendoh J and the ruling of Odunga J
The High Court had no jurisdiction to review its own judicial review orders and the appellant made out no case for review
Restoration of the appellant to Job Group R
Flowing from dismissal of the appeal; the underlying judicial review and review applications had been dismissed
Costs
No order as to costs (each party to bear their own costs in effect; the appeal was dismissed 'with no order as to costs')
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 reiterate that the jurisdiction of the High Court to review its orders emanating from judgments in applications of judicial review is fettered under section 8(5) of the Law Reform Act.
orders issued with finality in the exercise of the said jurisdiction namely mandamus, prohibition and certiorari are not amenable to recall, review and setting aside.
The grounds upon which he based his application, which include that the trial court misapprehended the provisions of the Public Service Act, are grounds for appeal, and not for review.
Accordingly, this appeal is dismissed with no order as to costs.
Issues in the judgment
#The judgment quotes section 8(5) of the Law Reform Act as specifying an appeal lies to the Court of Appeal, while the respondent's submissions attribute to section 85 of the Law Reform Act the proposition that the High Court lacks jurisdiction to review its judicial review judgments; the judgment does not itself quote or resolve section 85.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geoffrey Sheridan Ouma v Public Service Commission of Kenya [2019] KECA 861 (KLR)", Case Analysis (2019). Civil Appeal No 155 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/861/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.