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Case Brief · caselaw.co.ke
Supreme CourtDismissedPetition 6 of 2019

Tom Odhiambo Ojienda v Kenya Revenue Authority & another

Supreme Court of Kenya
11 February 2019
744 words in judgment
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The bottom line

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Supreme Court dismissed review but allowed fresh application for conservatory orders.

What this practically means

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The Supreme Court rejected a request to overturn a single judge's decision that had dismissed an application for temporary orders because the main appeal was not on file. The Court found the single judge did not err, as the appeal was missing at the time. However, since the appeal is now filed, the applicant can make a new application for the same orders. No costs were awarded.

Executive summary

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This was an application by Prof. Tom Odhiambo Ojienda seeking review of a decision by a single Judge (Njoki Ndungu, SCJ) who had dismissed his application for conservatory orders on 7th February 2019. The single Judge struck out the application on the ground that there was no Petition of Appeal on record, relying on the principle that an interlocutory application cannot originate proceedings before the Court. The Applicant argued that a Petition of Appeal had been filed on the same day and that the single Judge erred. The Supreme Court, sitting as a bench of five Judges, dismissed the review application. The Court found that although a Petition of Appeal had been filed, it was not before the single Judge and was not traceable at the time of her decision. Therefore, the single Judge did not err. The Court applied its earlier jurisprudence from Parliamentary Service Commission v. Martin Nyaga Wambora & Others, which requires an applicant for review to demonstrate how the single Judge erred or that the decision was clearly wrong causing apparent injustice. Since the Applicant failed to meet this threshold, the application was dismissed. However, the Court noted that a Petition of Appeal was now on record and granted the Applicant liberty to file a fresh application for conservatory orders. No costs were awarded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the single Judge erred in dismissing the Applicant's application for conservatory orders on the ground that there was no Petition of Appeal on record.
  2. 2.Whether the decision of the single Judge should be reviewed and set aside by a bench of five Judges.

Key legal issues

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01

Whether the single Judge erred in dismissing the application for conservatory orders for lack of a Petition of Appeal.

Holding

The single Judge did not err because the Petition of Appeal was not on record at the time of her decision.

Reasoning

The Court examined the record and found that although the Applicant had filed a Petition of Appeal on the same day, it was not before the single Judge and was not traceable when she made her orders. Therefore, the single Judge correctly applied the principle from Yusuf Gitau Abdallah v. Building Centre (K) Ltd & 4 Others that an interlocutory application cannot originate proceedings before the Court without a substantive petition.

02

Whether the Applicant is entitled to a review of the single Judge's decision.

Holding

The Applicant failed to demonstrate that the single Judge erred, so the review application is dismissed.

Reasoning

The Court applied the test from Parliamentary Service Commission v. Martin Nyaga Wambora & Others, requiring the applicant to show how the single Judge erred or that the decision was clearly wrong causing apparent injustice. Since the single Judge's decision was correct on the facts before her, the Applicant did not meet this threshold.

Legal principles established

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  • A single judge's decision can be reviewed by a five-judge bench.
  • Applicant must show the single judge erred or the decision is clearly wrong causing apparent injustice.
  • An interlocutory application cannot proceed without a substantive petition on record.
  • The court examines the record as it existed when the single judge made the decision.
  • If a defect is cured, the applicant may file a fresh application for the same relief.

Court orders

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  1. 1.The Applicant’s Notice of Motion dated 8th February, 2019 is hereby dismissed.
  2. 2.The Applicant is at liberty to file a fresh application for Conservatory Orders as he deems fit and the same to be determined on its merits.
  3. 3.There shall be no Orders as to costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya (Single Judge)
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Referral of the application for conservatory orders to a bench of five Judges for consideration.

The single Judge did not err because the Petition of Appeal was not on record at the time of her decision.

Review and setting aside of the order of the single Judge dismissing the application for conservatory orders.

The single Judge's decision was correct based on the record before her.

Costs

There shall be no Orders as to costs.

Quotable passages

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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 find that the single Judge did not err by holding that there was no Petition of Appeal on record and striking out the Applicant’s Notice of Motion dated 7th February, 2019.
p. 4 Review of single Judge decision
the Applicant’s Notice of Motion dated 8th February, 2019 is hereby dismissed.
p. 4 Final orders
The Applicant is at liberty to file a fresh application for Conservatory Orders as he deems fit and the same to be determined on its merits.
p. 4 Liberty to file fresh application
There shall be no Orders as to costs.
p. 4 Costs order

Key timeline

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2019-02-07
Single Judge dismissed application for conservatory orders for lack of Petition of Appeal.
2019-02-08
Applicant filed Notice of Motion seeking review of the single judge's decision.
2019
Supreme Court (five-judge bench) dismissed the review application but allowed fresh application.

Practical implications

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For lawyers

Review must show error by single judge

When seeking review of a single judge's decision, you must clearly demonstrate how the judge erred or that the decision is clearly wrong causing apparent injustice. Simply showing that the factual basis later changed is insufficient; the court looks at the record as it was at the time.

For businesses

File main case before seeking interim orders

If you need urgent court orders, ensure the main case documents are properly filed and traceable. The court will not grant interim relief if the substantive petition is not on record. This applies to election disputes and other commercial matters before the Supreme Court.

For individuals

You can refile after a technical dismissal

If your application is dismissed because a required document was missing, you can fix the issue and file a fresh application. The court may allow you to do so without penalty, as happened here where the applicant was given liberty to file a new application for conservatory orders.

Frequently asked questions

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What happened in Tom Odhiambo Ojienda v IEBC case in Kenya?+

The Supreme Court dismissed a review application by Prof. Ojienda against a single judge's decision that had dismissed his request for conservatory orders because the main appeal wasn't on file. However, the Court allowed him to file a fresh application.

Can a single judge's decision in the Supreme Court be reviewed in Kenya?+

Yes, a decision of a single Supreme Court judge can be reviewed by a bench of five judges. The applicant must show that the single judge erred or that the decision is clearly wrong causing apparent injustice.

What is a conservatory order in Kenya?+

A conservatory order is a temporary court order to preserve the status quo pending the determination of a case. It is often sought in election disputes to prevent actions that could render the main appeal useless.

Do I need a substantive petition to get interim orders in the Supreme Court of Kenya?+

Yes, you cannot obtain interim orders like conservatory orders without a substantive petition or appeal on record. The court will dismiss the application if the main case is not filed.

Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Tom Odhiambo Ojienda v Kenya Revenue Authority & another", Case Analysis (2019). Petition 6 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/46/eng@2019-02-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.