1.The application before court is a motion dated 7 July 2020 in which the applicant is seeking the prerogative order is of certiorari and prohibition against the respondents. As far as the order of certiorari is concerned he seeks to be quashed the decision made on 29th of June 2020 by the respondents to prosecute the applicant with respect to what he has described as “the agreements to provide finance for acquisition of title deed for land property L.R. 26/6/21 Baba Dogo dated 19th June 2020”.
2.The order of prohibition is sought to prohibit the respondents or any other officers acting at their behest from arresting or prosecuting the applicant on any offences related to the aforesaid agreements.
3.The application is supported by a statement of facts dated 8 July 2020 and which is, itself, verified by an affidavit sworn by the applicant.
4.According to these documents, the applicant is an advocate of this Honourable Court. On 29 June 2022 officers of the Criminal Investigation Department from the central police station in Nairobi went to the applicant’s chambers and arrested him. They took him to central police station. The officers also carried his office stamps and a receipt book.
5.The applicant states that he was roughed up in the course of the arrest and forced to pay Kshs 600,000/= to the interested party. He did not have this money since he had transmitted it to one of the parties in the agreements. Nonetheless, he wrote a post-dated cheque of this sum in favour of the interested party and it is only after he handed over the cheque to the police officers that he was released from custody. He fears that he will be arrested and charged if the cheque is not honoured.The respondents filed a replying affidavit opposing the application.
6.I have considered the application and the responses thereto and the respective submissions filed by the parties’ representatives.
7.One thing that stands out prominently in the applicant’s application and upon which his application turns is the omission by the applicant to state in the statutory statement the grounds upon which his application is based. The statutory statement has only spelt out the description of the parties, the facts and the reliefs sought but not the grounds.
8.It is beyond peradventure that one of the vital components of an application for judicial review is the grounds upon which it is made. They are important because Order 53 Rule 1(2) states in mandatory terms that the statement accompanying the application must contain, among other things, the grounds upon which the application is made. It reads as follows:(2)An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. (Emphasis added).
9.And Order 53 Rule 4(1) states unambiguously that no grounds should be relied upon except those specified in the statement accompanying the application for leave.What are these grounds?
10.The grounds for judicial review were enunciated in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 in which Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:
11.These grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. The court will intervene and grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to add that further development of this area of law may yield further grounds on a case by case basis. I suppose it is in this spirit that the principle of proportionality as a further ground for judicial review has been developed.
12.I would be speculating if I was to proceed on the presumption that the applicants’ application is based on any particular ground or grounds.
13.But the court cannot, and need not speculate on what is on the mind of any particular applicant because it is the applicant’s obligation, in the first place, to state categorically the ground or grounds upon which he seeks a judicial review court to intervene and impeach the administrative action in issue.
14.While reiterating the importance of stating grounds for judicial review in concise and precise terms, Michael Fordham in his book, Judicial Review Handbook, at Paragraph 34.1 states as follows:
15.The ‘new order’ referred to in this passage is Order 53 of the Rules of the Supreme Court of England whose provisions are more or less in pari materia with our own Order 53 of the Civil Procedure Rules, 2010. The point is, however, clear that courts will not entertain applications where grounds have not been identified and accurately stated. Stating the grounds in precise terms is not, as it were, a matter of analytical nicety but it is a practical necessity.
16.It follows that where the grounds are not stated, the application is fatally defective as, strictly speaking, it has no foundation upon which it is built. The applicant’s application is such an application and for this reason it cannot see the light of day. It is dismissed with costs.