Bench Bulletin - Issue 12 - Kenya Law Reports

KENYA LAW REPORTS
BENCH BULLETIN
FEATURE CASE
Judicial Review - practice and procedure – pleadings – pleadings to be filed and the time for filing them in judicial review
applications - application for leave ‘to be accompanied by’ the statement of particulars and a verifying affidavit – where
the affidavit and statement are filed on a different day after the application for leave by chamber summons – whether the
application was valid – whether the respondent had been prejudiced – Civil Procedure Rules Order 53 rule 1(2).
In March 2003, ‘following widespread and persistent allegations of corruption in the Judiciary’, the Chief Justice of
the Republic of Kenya appointed the Integrity and Anti-Corruption Committee of the Judiciary chaired by the Hon. Mr.
Justice A. Ringera, a Judge of Appeal (The Ringera Committee). The Committee’s terms of reference were to investigate
the allegations, identify corrupt members of the Judiciary, recommend disciplinary or other measures and address
any other related matters.
The Committee carried out its work and submitted its report to the Hon. the Chief Justice in September, 2003. In the
report a number of Judicial Officers were adversely mentioned. They included the applicant, who was both a Judge of
the Court of Appeal of Kenya and the President of the East African Court of Justice. Upon receiving the report, the Chief
Justice made a representation to the President, H.E. Hon. Mwai Kibaki under section 62(5) and 64(3) of the Constitution
and by a Gazette Notice in December 2003, the President appointed a Tribunal whose terms of reference were:
‘To investigate the conduct of judges of Appeal [implicated in the Ringera Committee Report] including, but not
limited to, the allegations that the said judges of Appeal have been involved in corruption, unethical practices
and absence of integrity in the performance of the functions of their office [and] to make a report and its
recommendations thereon……In the meantime, the said Judges of Appeal stand suspended from exercising
the functions of their office with immediate effect’. (Emphasis supplied).
About a year after his suspension, the applicant was served with an undated list of allegations that were according to
the Tribunal, to constitute the subject matter of its investigations. The applicant then filed judicial review proceedings
seeking orders of certiorari, judicial review and mandamus against the Hon. the Chief Justice (the 1st respondent), the
members of the Tribunal and its Assisting Counsel (the 7th respondent). The application was grounded on two main
grounds: that the list of allegations before the Tribunal was illegal, unconstitutional and outside the mandate of such a
Tribunal as it did not flow from any representation made to the President by the Chief Justice; and that the Tribunal’s
investigation would be contrary to the Constitution, natural justice and the legitimate expectation of the applicant as
he had not been afforded the opportunity to rebut any allegations against him before the representation was made to
the President. The applicant also set out the charges leveled against him by the Tribunal and challenged their validity
and justiciability.
State Counsel representing the 1 st -6 th respondent raised a preliminary objection that the application did not comply
with Order 53 rule 1 (2) of the Civil Procedure Rules which required an application for leave to file judicial review
proceedings to be accompanied by a statement setting out the name, description of the applicant, the reliefs sought,
the grounds on which it is sought and an affidavit verifying the facts relied on. The affidavit and the statement had
been lodged a day before the Chamber Summons application.
The second objection was that the High Court had no jurisdiction to entertain the application because one of the
respondents was the Chief Justice, who was both a Judge and the holder of a constitutional office, and his exercise of
constitutional powers as the administrator of the Judiciary could not be questioned by the High Court through judicial
review. Secondly, it was submitted that to question the procedure adopted by the Tribunal was an affront to the President
who was the donor of the power of the Tribunal to make rules of procedure, and that therefore to question the members
of the Tribunal was to challenge the President in the exercise of his constitutional powers.
Counsel assisting the Tribunal also raised a preliminary objection that he had been wrongly and improperly joined
into the proceedings.
Held:
1. The affidavit and the statement accompanying the judicial reciew application were additional and complementary
to the Chamber Summons and where they are lodged a day before the Chamber Summons that does not change or alter
the validity of the Chamber Summons.
2. Further, the administration of justice requires that the substance of disputes should be investigated and decided
on their merits and that any procedural error or lapses should not be used by a party to defeat the case of the other
party unless there is evidence that he has suffered or is likely to suffer substantial injustice or prejudice. There was
no injustice or prejudice that was suffered by the respondent as a result of applicant’s failure to file all the documents
on the same day and to ensure that the application for leave was accompanied by a verifying affidavit and statement
of facts.
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Issue 12: April-June 2010