Havi & 3 others v Suyianka & 17 others
The bottom line
#Kenya's Court of Appeal confirmed you can start a judicial review case without attaching the decision you're challenging, and can skip broken internal dispute processes.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether failure on the respondents' part to exhibit the impugned decisions or proceedings rendered the application for leave fatally defective
- 2.Whether the 1st–6th respondents' case demonstrated exceptional circumstances exempting them from first exhausting the Society's internal dispute resolution mechanism
- 3.Whether the application for leave disclosed sufficient grounds to merit leave to institute judicial review proceedings, including whether the common law grounds were pleaded
- 4.Whether the application was made in bad faith
- 5.What orders ought to be made in determination of the appeal, including orders as to costs
Key legal issues
#Whether failure to annex the impugned decision or proceedings to an application for leave for judicial review is fatal
Not fatal at the leave stage; Order 53 Rule 1(2) does not mandate exhibition of the impugned decision, and Order 53 Rule 7 only requires lodging of the order before hearing of the substantive Motion
The court read Order 53 Rules 1 and 7 together: the leave application requires a statement and verifying affidavits only, while the impugned order must be lodged before the substantive Motion is heard. Following IEBC vs NASA, where it is clear and uncontested that a decision exists, the need to attach it can be waived. The objection was therefore premature.
Whether the respondents were exempt from exhausting the Society's internal dispute resolution mechanisms under Regulations 95 and 96 as read with section 9(2) of the FAAA
Yes; exceptional circumstances under section 9(4) of the FAAA existed, given deep-seated wrangles within the Society's leadership and between it and the membership
Regulation 95(1) is discretionary ('may') and cannot override the exemption in section 9(4) of the FAAA. The deep-seated disagreements on policy, administrative and constitutional issues were not suited to amicable resolution internally; pursuing internal remedies would have been futile, requiring immediate judicial intervention. The learned Judge correctly found the exemption merited.
Whether the respondents failed to plead the common law grounds for judicial review
No; the grounds of illegality, irrationality and procedural impropriety were specifically pleaded in the statutory statement, together with constitutional grounds
The court agreed with the learned Judge that the statutory statement of facts dated 21st January 2021 specifically pleaded the common law grounds, and that constitutional grounds pleaded went beyond the usual common law and statutory grounds, consistent with IEBC vs NASA.
Whether the respondents' application was made in bad faith (mala fides)
No; the application was intended to guarantee due process in the performance of the appellants' duties as the Society's leadership
The court found nothing suggesting the application was calculated to impede the Society's functions, nor that the respondents were busybodies with frivolous complaints. The application merited the judicial review orders sought and was directed at guaranteeing due process in the administration of the Society's affairs.
Legal principles established
#- Order 53 Rule 7 of the Civil Procedure Rules does not require the decision sought to be quashed to be attached to the application for leave; it need only be lodged with the Registrar before hearing of the substantive Motion, and failure to attach at the leave stage may be cured later or excused
- The requirement to exhibit the impugned decision is an issue for determination during or after the hearing of the substantive Motion and cannot be raised as a preliminary point of law
- Section 9(4) of the Fair Administrative Action Act permits exemption from exhausting internal dispute resolution mechanisms in exceptional circumstances, such as where the internal remedy would be futile or where deep-seated conflict renders it inappropriate
- An appellate court will not interfere with the exercise of a trial court's discretion unless it is shown that the discretion was exercised injudiciously
Court orders
#- 1.The appeal be and is hereby dismissed
- 2.The Ruling and Order of the High Court of Kenya at Nairobi (J. Ngaah, J.) dated 26th February 2021 in HCCC JR No. E005 of 2021 be and is hereby upheld
- 3.The 1st–6th and 18th respondents' costs of the appeal be borne by the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- HCCC JR No. E005 of 2021
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court's ruling on a preliminary objection to an application for leave to institute judicial review proceedings
Relief refused
#Appellants' prayer to allow the appeal and set aside the High Court ruling
The preliminary objection failed; the learned Judge correctly exercised his discretion
Appellants' prayer to dismiss the respondents' Chamber Summons dated 21st January 2021
The application for leave complied with Order 53 Rule 1(2) and disclosed an arguable claim
Costs
The 1st–6th and 18th respondents' costs of the appeal be borne by the appellants
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.
It is instructive that this rule does not mandate an applicant to exhibit copies of the impugned decision or proceedings at this early stage in the proceedings.
To our mind, Order 53 Rule 7 of the Civil Procedure Rules does not require that the order sought to be quashed by Orders of Certiorari be attached to the application for leave.
Accordingly, we find that the preliminary objection on this account was raised prematurely and must, therefore, fail.
where an internal remedy would not be effective and/or where its pursuit would be futile, a court may permit a litigant to approach the court directly.
In conclusion, we find as a fact and hold that section 9(4) of the FAAA was properly invoked in the circumstances of the present case
a. the appeal be and is hereby dismissed; b. the Ruling and Order of the High Court of Kenya at Nairobi (J. Ngaah, J.) dated 26th February 2021 in HCCC JR No. E005 of 2021 be and is hereby upheld; and c. the 1st – 6th and 18th respondents' costs of the appeal be borne by the appellants.
Issues in the judgment
#Coram lists three judges but the signature block contains only two; the judgment explains this by Nambuye JA's retirement under Rule 34(4)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Havi & 3 others v Suyianka & 17 others", Case Analysis (2022). Civil Appeal E096 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/931/eng@2022-08-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.