Case Metadata |
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Case Number: | Misc Civ Appli 606 of 2005 |
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Parties: | REPUBLIC v KENYA PORTS AUTHORITY, NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY & SUBIRA SHIP CONTRACTORS Ex-parte KABURU & SONS SHIP CONTRACTORS & MWAWAKO SHIPPING AGENCIES |
Date Delivered: | 02 Jun 2006 |
Case Class: | Civil |
Court: | High Court at Mombasa |
Case Action: | |
Judge(s): | Joseph Kiplagat Sergon |
Citation: | REPUBLIC v KENYA PORTS AUTHORITY & 2 others Ex-parte KABURU & SONS SHIP CONTRACTORS & another [2006] eKLR |
Advocates: | Mr. Kibara for the Appliant Miss Malik for the Respondent |
Advocates: | Mr. Kibara for the Appliant Miss Malik for the Respondent |
Case Summary: | [Ruling] Judicial review - certiorari and prohibition - orders of certiorari sought to quash the decision of the respondent to cancel a licences giving the applicant a right to carry out sludge and waste disposal at the port of Mombasa - order of prohibition sought to prevent the respondent from implementing the decision - objection raised on the ground that the decision was made in exercise of the respondent's power under the Kenya Ports Authority Act and the East African Harbours Regulations of 1970 and that the discretion was absolute so that the court had no discretion to interfere with the decision - respondent also submitting that there was nothing to stay since the decision had been made - whether the High Court had the jurisdiction to determine the dispute |
Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Misc Civ Appli 606 of 2005
IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW
ORDERS UNDER ORDER LIII CIVIL PROCEDURE
RULES
AND
IN THE MATTER OF: THE LAW REFORM ACT CAP 26 LAWS OF KENYA
AND
IN THE MATTER OF: THE KENYA PORTS AUTHORITY ACT CAP 391
LAWS OFKENYA
AND
IN THE MATTER OF: THE EAST AFRICAN HARBAOURS REGULATIONS
1970
AND
IN THE MATTER OF: THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY ACT 1999
AND
REPUBLIC …………………….............………………………………………….APPLICANT
AND
THE KENYA PORTS AUTHORITY ……....................………….…………RESPONDENT
KABURU & SONS SHIP CONTRACTORS
MWAWAKO SHIPPING AGENCIES ...................................... EX-PARTE APPLICANTS
AND
THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY...INTERESTED PARTY
SECOND INTERESTED PARTY …..........................…….SUBIRA SHIP CONTRACTORS
R U L I N G
By a letter dated 8th July 2005, Kenya Ports Authority, he Respondent herein, informed Kaburu & Sons Ship Contractors and Mwawako Shipping Agencies the applicants herein, of the cancellation of their licences giving them a right to carry out sludge and waste disposal at the port of Mombasa.
Being aggrieved by that decision the applicants filed judicial review proceedings in which they now seek for orders of certiorari to quash the Respondent’s decision and a further order of prohibition to prohibit the Respondent from further proceeding with implementing, enforcing and or causing it to be enforced or implementing the purported cancellation of the licenses.
When the motion came up for hearing, the Respondent raised a Preliminary Objection against the whole Motion. It is the argument of Miss Malik, advocate for the Respondent that Kenya Ports Authority exercised its powers donated to it by Kenya Ports Authority Act and under the East African Harbours Regulations of 1970 to cancel the licenses given to the applicants. It further argued that the discretion was absolute and this court has no discretion to interfere with the decision on the ground as whether or not the decision was fair. Mrs. Malik also argued that the decision to cancel the licence has been made and hence there is nothing to stay. It was her view that the motion should have been filed before the 8th day of July 2006.
On his part, Mr. Kibara Advocate for the applicants was of the view that the motion is competently before this court and that this court has the jurisdiction to interfere with the decision of the Respondent. The Applicants’ advocate was of the view that the issues raised in the notice of preliminary objection can only be disposed of in a substantive application. It was pointed out that the applicants are likely to show that the Respondent in exercising its statutory powers it was biased and that it did not accord the applicants a right of hearing.
I have taken into account the competing arguments for and against the preliminary objection. My understanding of the Preliminary Objection is that it is basically challenging the jurisdiction of the court to determine the dispute. It is the argument of Mrs. Malik that the dispute set out in these proceedings is not amenable by Judicial Review. It is not denied that the Respondent cancelled the applicants’ licences in exercise of a statutory power specified under the Kenya Ports Authority Act and the East African Harbours Regulations of 1970. There is no dispute also that the power is discretionary. This court has been urged to hold discretionary powers are not amenable to judicial review. There are ample authorities on the subject. The crux of the matter is that the Respondent’s decision is an administrative decision, which is amenable to judicial review. The applicants are not barred from coming to this court for assistance. Let me refer and adopt what Lord Esher M.R. said in the English case of Regina =vs= Vestry of Pancras [1890] 24 Q.B.D. 371 at pages 375-376 in which he said of a body who were entrusted with a discretion:
“They must fairly consider the application and exercise their discretion on it fairly and not take into account any reason for their decision which is not a legal one. If people who have to exercise a public duty by exercising their discretion take into account matters which the courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion.”
Lord Greene M.R. was more emphatic in Associated Provincial Picture Houses Ltd. =vs= Wednesday Corporation [1948] 1 KB 223 in which he said:
“ a person entrusted with a discretion must so to speak direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider.”
The final decision is that the preliminary objection has no merit. It is dismissed with costs to the applicant.
Dated and delivered at Mombasa this 2nd day of June 2006.
J.K. SERGON
J U D G E
In open court in the absence of the parties.