Judicial review courts have the power to interrogate both the process and the merit of an impugned decision.
The appellants were employees of Geothermal Development Company ( GDC). GDC was fully owned by the Government of the Republic of Kenya as a state corporation carrying on the business of geothermal exploration. GDC issued an advertisement for tender No. REF. GDC/HSQ/086/2011-12 (tender) for the provision of rig move services for the Menengai Geothermal Project. The tender was awarded to Bonafide Clearing and Forwarding Company Limited (hereinafter referred to as the “BCFCL”) for Kshs. 42,746,000 per rig move. The appellants were members of GDC’s Tender Committee that procured the provision of the rig move services.
The Ethics and Anti-Corruption Commission (EACC/ 2nd respondent) asserted that it received a complaint regarding the failure of GDC’s Tender Committee to comply with procurement law in the procurement of rig move services tender. The complaints were based on the conduct of the appellants in their capacity as members of the GDC Tender Committee for the acquisition of rig moves in tender No. Ref. GDC/HQS/086/2011-2012. More specifically the difference in the procurement of the rig-move services for the year 2011/2012 at a cost of Kshs. 42,746,000/= from BCFCL while the previous year the same services were tendered at a cost of Kshs. 19,550,000/= to the same company, BCFCL, at a cost of per rig move. The difference in price in the procurement of the rig-move services was considerably higher than comparable similar rig move services by the same provider, BCFCL, by other government institutions more specifically KenGen for rig move services at Olkaria and Eburru Geothermal fields vide tender no. KGN-OLK-179-2012 resulted in an agreement dated February 5, 2014 at a cost ranging between Kshs. 13,565,040 and Kshs. 24,429,600.
Due to that, DPP on the recommendation of EACC, elected to charge the appellants with various offences including wilful failure to comply with the law relating to procurement contrary to section 45 (2) (b) as read with section 48 of the Anti-Corruption and Economic Crimes Act and inappropriate influence on evaluation contrary to section 38(1)(b) as read with 38(2)(a) of Public Procurement and Disposal Act and abuse of office contrary to section 46 as read with section 48 of the Anti-Corruption and Economic Crimes Act.
Before the said criminal case could be heard and determined, the 1st appellant, pursuant to leave of the court filed judicial review proceedings which inter alia sought for an order of certiorari to quash EACC’s decision recommending her prosecution for the aforesaid anti-corruption offences; and DPP’s decision directing her prosecution. The High Court granted an order of prohibition barring the DPP from prosecuting. Aggrieved the respondents appealed and the Court of Appeal held that the judicial review application did not merit the exercise of the High Court’s discretion and found that the High Court misdirected itself in deciding to issue orders of certiorari and prohibition.
Aggrieved, the appellants’ filed two appeals which were consolidated. Their grievances were distinctively similar. They both contended that the charges preferred against them were non-existent and that the DPP failed to holistically interpret and understand the Public Procurement and Disposal Act (2005) and the Public Procurement and Disposal Regulation (2006).
- Whether judicial review courts had the power to interrogate both the process and the merit of an impugned decision.
- What were the circumstances in which a judicial review court could interfere with the decision of the Office of the Director of Public Prosecutions (DPP) to charge an accused person?
- Whether a challenge on the interpretation of the provisions used to charge an accused person was an issue concerning the propriety or otherwise of the decision by the DPP to charge an accused warranty consideration by a judicial review court.
- Whether the Court of Appeal erred in holding that the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the DPP as set out in the Constitution.
- Judicial review established the court's authority to hold the government as well as the subordinate courts and bodies exercising quasi-judicial authority accountable to the law. Judicial review was the court’s way of enforcing the rule of law: ensuring that public authorities functions were undertaken according to law and that they were accountable to law. Ensuring that public bodies were not above the law.
- Before the promulgation of the Constitution 2010, judicial review was governed by the principles of common law largely borrowed from the United Kingdom. The jurisdiction to entertain applications for judicial review remedies was vested in the High Court. The basis of judicial review in Kenya was derived from the Law Reform Act and order 53 of the Civil Procedure Rules, 2010. Section 8 and 9 of the Law Reform Act provided the substantive basis while order 53 provided the procedural basis. The remedies in judicial review were certiorari, prohibition and mandamus. The grounds upon which one could base an application for judicial review were under the heads of illegality, irrationality, procedural impropriety and proportionality.
- Post the Constitution of Kenya, 2010, judicial review was no longer a common law prerogative, but was entrenched in the Constitution to safeguard the constitutional principles, values and purposes. In particular, article 23 (3)(f) provided for the orders of judicial review as one of the available remedies concerning the enforcement of the Bill of Rights. Article 47(1) of the Constitution guaranteed every person the right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Article 165(6) granted the High Court supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. In 2015, Parliament in adherence to article 47 of the Constitution enacted the Fair Administrative Action Act, No. 4 of 2014, Laws of Kenya (FAA Act).
- Due to the codification of the law on judicial review, two schools of thought emerged. The first believed that since the promulgation of the Constitution 2010, judicial review had shifted from the process only approach to merit review in appropriate cases. The second school of thought maintained the traditional approach that believed that judicial review proceedings involved a process only approach limited to the interrogation of the process and not the merits of the decision being challenged.
- The Fair Administrative Actions Act provided the parameters of judicial review to be the power of the court to review any administrative or quasi-judicial act, omission or decision of any person, body or authority that affected the legal rights or interests of an aggrieved person. The judicial review court examined various aspects of an act, omission or decision including whether the body or authority whose decision was being challenged had done something which it had no lawful authority to do. It could have abused or misused the authority which it had. It could have departed from procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it could be found to be perverse, or irrational, or grossly disproportionate to what was required. The parameters were set out extensively in section 7 of the Fair Administrative Actions Act (FAAA).
- The framers of the Constitution when codifying judicial review to a constitutional right, the intention was to elevate the right to fair administrative action as a constitutional imperative not just for state bodies, but for any person, body or authority. It was a clarion call to ensure that the constitutional right to fair administrative actions permeated every aspect of the lives of Kenyans, from their engagements with educational facilities such as universities, to employer-employee relationships, to engaging with public bodies in whatever capacity, or any body, person or authority that exercises quasi-judicial functions. That approach was consistent with realizing the right of access to justice because justice could be obtained in other places besides a courtroom.
- For the court to get through an extensive examination of section 7 of the FAAA, there had to be some measure of merit analysis. That was not to say that the court had to embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly in the circumstances of the case without examining those circumstances and measuring them against what was reasonable or fair, and arriving at the conclusion that the action taken was within or outside the range of reasonable responses. It was not to be limited to the examination of uncontroverted evidence. The controverted evidence was best addressed by the person, body or authority in charge.
- There was nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception that judicial review was limited to a dry or formalistic examination of the process only led to intolerable superficiality. That would be against article 259 of the Constitution which required the courts to interpret it in a manner that inter alia advanced the rule of law, permits the development of the law and contributes to good governance.
- The intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court.
- The nature of evidence in judicial review proceedings was based on affidavit evidence. That could not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialised institutions were better placed to so. The courts were limited in the nature of reliefs that they could grant to those set out in section 11(1) and (2) of the FAAA. The court could not substitute the decision it was reviewing with one of its own. The court could not set about forming its own preferred view of the evidence, rather it could only quash an impugned decision(section 11(1)(e) and (h) of the FAAA).
- The merits of a case were best analysed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced. In matters involving the exercise of judgment and discretion, a public officer or public agency could only be directed to take action; it could not be directed in the manner or the particular way the discretion was to be exercised.
- Article 157(6) of the Constitution empowered the Director of Public Prosecutions (DPP) to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed. Being one of the independent Constitutional offices established, article 157(10) safeguarded that independence by decreeing that the DPP was not to require the consent of any person or authority before commencement of proceedings, neither was the DPP under the direction or control of any person. That was not to say that that power was absolute. Article 157(11) required the DPP in exercise of his duties to have regard for public interest, interests of administration of justice and to prevent or avoid abuse of the legal process.
- Whenever it seemed that the DPP was utilizing criminal proceedings to abuse the court process, to settle scores or to put an accused person to great expense in a case which was clearly not otherwise prosecutable, then the court could intervene.
- Although the DPP was not bound by any direction, control or recommendations made by any institution or body, being an independent public office, where it was shown that the expectations of article 157(11) of the Constitution had not been met, then the High Court under article 165(3)(d)(ii) could properly interrogate any question arising and make appropriate orders. The following guidelines read alongside article 157 (11) of the Constitution were a good gauge in the interrogation of alleged abuse of prosecutorial powers:
- where institution/continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;
- where it manifestly appeared that there was a legal bar against the institution or continuance of the said proceedings, eg. want of sanction;
- where the allegations in the first Information report or the complaint take at their face value and accepted in their entirety, did not constitute the offence alleged;
- where the allegations constituted an offence alleged but there was either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.
- In matters that involved exercise of judgment and discretion, a public officer or public agency could only be directed to take action; it could not be directed in the manner or the particular way the discretion was to be exercised. The only exception where a court could compel a public agency to implement a recommendation was where there was gross abuse of discretion, manifest injustice or palpable excess of authority equivalent to denial of a settled right which the petitioner was entitled, and there was no other plain, speedy and accurate remedy.
- Issues on the interpretation or misrepresentation of the provisions one was charged with by the DPP in a criminal court were not issues concerning the propriety or otherwise of the decision by the DPP to charge them. Those were contentions of fact, evidence and interpretation of the law better suited to be examined by a trial court. Certainly, not for the High Court while exercising its judicial review jurisdiction. It was not for the High Court as a constitutional court to go through the merits and demerits of the case as that was the duty of the trial court. It was not for a judicial review court to undertake the merits and demerits of a matter based on controverted evidence and contested interpretations of the law.
- The High Court, whether sitting as a constitutional court or a judicial review, could only interfere where it was shown that under article 157(11) of the Constitution, criminal proceedings had been instituted for reasons other than enforcement of criminal law or otherwise abuse of the court process.
- A distinction of the applicable procurement laws and whether the appellants participated in the tender process hence liable to prosecution was a determination best arrived at upon consideration of viva voce evidence and through cross examination of witnesses. The Court of Appeal did not err in holding that the High Court exceeded its jurisdiction in interfering with the prosecutorial mandate of the DPP as set out in the Constitution.
- The right to fair hearing was broad and included the concept of the right to fair trial as it dealt with any dispute whether they arose in a judicial or an administrative context. By refusing to submit to the jurisdiction of the trial court where their innocence may be upheld or their guilt established, the appellants removed themselves from the protections of article 50(1) of the Constitution. Whatever the case, the criminal justice system was required to protect against the abuses claimed by the appellants, which the trial court was competent to resolve when challenged by an accused person, properly, during the trial.
- The claim for constitutional rights violations fell by the wayside. It would be pragmatic that the appellants let the trial commence and conclude, during which trial they may raise all the issues they had as against the law under which they were charged. If successful, it was only then that they would pursue their rights on appeal.
- Charles Masinde v Augustine Juma & 8 others (Civil Appeal 1 of 2014;  KECA 96 (KLR)) — Mentioned
- Child Welfare Society of Kenya v. Republic & 2 others Ex-parte Child in Family Focus Kenya (Civil Appeal 20 of 2015;  KECA 175 (KLR)) — Mentioned
- Commissioner of Lands v Kunste Hotel Limited (Civil Appeal 234 of 1995;  KECA 335 (KLR)) — Explained
- Commissioner of Police & the Director of Criminal Investigation Department & another v. Kenya Commercial Bank Ltd & 4 others (Civil Appeal 56 of 2012;  KECA 182 (KLR)) — Mentioned
- Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14 A, 14 B & 14 C of 2014 (Consolidated)) — Explained
- Diamond Hasham Lalji & another v Attorney General & 4 others (Civil Appeal 274 of 2014;  KECA 856 (KLR)) — Explained
- Douglas Maina Mwangi v Kenya Revenue Authority & another (Constitutional Petition No. 528 of 2013) — Mentioned
- Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others (Petition 18 & 20 of 2014;  KESC 11 (KLR)) — Mentioned
- Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others (Petition 4 of 2012) — Explained
- Jirongo v Soy Developers Ltd & 9 others (Petition 38 of 2019;  KESC 32 (KLR)) — Explained
- John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others (Petition 17 of 2015;  KESC 39 (KLR)) — Explained
- Joram Mwenda Guantai v Chief Magistrate, Nairobi (Civil Appeal 228 of 2003) — Mentioned
- Josephat Kiplagat v Michael Bartenge (Civil Appeal 357 of 2013;  KECA 346 (KLR)) — Mentioned
- Joshua Sembei Mutua v. Attorney General & 2 others (Civil Appeal 93 of 2015;  KECA 227 (KLR)) — Mentioned
- Judicial Service Commission & another v Njora (Civil Appeal 486 of 2019;  KECA 366 (KLR)) — Applied
- Kenya Commercial Bank & 2 others v Commissioner of Police & another (Petition 218 of 2011) — Mentioned
- Kenya National Examination Council v. Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others (Civil Appeal 266 of 1996;  KECA 58 (KLR)) — Mentioned
- Kenya Revenue Authority & 2 others v Darasa Investments Limited (Civil Appeal 24 of 2018;  KECA 358 (KLR)) — Mentioned
- Kenya Vision 2030 Delivery Board v Commission on Administrative Justice & 2 others (Petition 42 of 2019;  KESC 35 (KLR)) — Explained
- Keroche Industries Limited v. Kenya Revenue Authority & 5 others (Misc Civ Appli 743 of 2006) — Mentioned
- Mohamed Abdi Mahamud v. Ahmed Abdullahi Mohamad & 3 others (Petition 7 of 2018;  KESC 26 (KLR)) — Mentioned
- Njuguna S. Ndung’u v Ethics & Anti-Corruption Commission (EACC), Director of Public Prosecutions (DPP) & Inspector General of the National Police Service & Attorney General (Civil Appeal 333 of 2014;  KECA 47 (KLR)) — Mentioned
- North Wales Police v Evans ( 1 WLR 1155,  UKHL 10, (1982) 3 All ER 141) — Explained
- Paul Ng'ang'a Nyaga & 2 others v Attorney General & 3 others (Petition 518 of 2012) — Mentioned
- Peter Ayodo Omenda & 6 others v. Director of Public Prosecutions & 2 others (Miscellaneous Civil Application 198 of 2016) — Explained
- Philomena Mbete Mwilu v. DPP & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) (Petition 295 of 2018)
- Ransa Company Ltd v Manca Francesco & 2 others (Civil Appeal 216 of 2009;  KECA 139 (KLR)) — Mentioned
- Republic v. Chairman Amagoro Land Disputes Tribunal & another ex-parte Paul Mafwabi Wanyama (Civil Appeal 41 of 2013;  KECA 190 (KLR)) — Mentioned
- Republic v Director of Public Prosecutions,& 2 others; Evanson Muriuki Kariuki (Interested Party); Ex parte James M. Kahumbura (Judicial Review 298 of 2018;  KEHC 8824 (KLR)) — Mentioned
- Republic v. Director of Public Prosecutions & 2 others Ex-parte Praxidis Namoni Saisi (Miscellaneous Civil Application 502 of 2015;  KEHC 5698 (KLR)) — Mentioned
- Republic v Director of Public Prosecutions , Ethics And Anti-Corruption Commission & Chief Magistrate’s Anti-Corruption Court At Milimani Law Courts,Nairobi Ex Parte Praxidis Namoni Saisi (Miscellaneous Civil Application 502 of 2015;  KEHC 5698 (KLR)) — Explained
- SGS Kenya Limited v. Energy Regulatory Commission & 2 others (Petition 2 of 2019;  KESC 64 (KLR)) — Explained
- Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others (Civil Appeal 46 of 2012;  KECA 729 (KLR)) — Mentioned
- Super Nova Properties Limited & another v. TDistrict Land Registrar Mombasa & 5 others (Civil Appeal 98 of 2016;  KECA 17 (KLR)) — Mentioned
- Thuita Mwangi v EACC & 6 others (Civil Appeal 285 of 2014) — Mentioned
- Uwe Meixner & another v Attorney General ( 2 KLR 189) — Mentioned
- Bhagwan Dass Jagdish Chander v Delhi Administration (1975 AIR 1309, 1975 SCR 30) — Explained
- Patrick Genius v The Coroners Act (Suit No M.35 of 2002) — Mentioned
- Re Gibson (deceased) ( All ER 90) — Explained
- R v. Manning ( EWHC J0517-4;  QB 330) — Explained
- Anti-Corruption And Economic Crimes Act (No. 3 of 2003) — Section 45(2)(b); 46; 48(1)(a) — Interpreted
- Civil Procedure Rules, 2010 (cap 21 Sub Leg) — Order 53 — Interpreted
- Companies Act (No. 17 of 2015) — Section 38 — Interpreted
- Constitution of Kenya, 2010 (Const2010) — Article 10(1)(2); 19; 20; 21; 22; 23; 25(c); 27(1)(2); 28; 29; 41; 47 (1)(2); 50(2)(a)(4); 94(5); 157(6)(10); 159; 165(3)(d)(ii)(iii); 201(d); 227; 249(1)(2); 259 — Interpreted
- Court of Appeal Rules (CAP. 9 Sub Leg) — Rule 29(1) — Interpreted
- Fair Administrative Action Act (No. 4 of 2015) — Section 7,11(1)(2)(e)(h) — Interpreted
- Law Reform Act (CAP. 26) — Section 8,9 — Interpreted
- Public Procurement And Asset Disposal Act (No. 33 of 2015) — Section 27(3); 30(3); 38(1)(b)(2)(a); 52; 66 (2), — Interpreted
- Public Procurement And Asset Disposal Regulations, 2006 (No. 33 of 2015 Sub Leg) — Regulation 7 (c); 10(2)(a)(e); 11(1) — Interpreted
- Fordham,M., (2012), Judicial Review Handbook, (Hart Publishing,6th Edn,)
- Garner, BA., (Ed) (2009), Black’s Law Dictionary (St Paul Minnesota: West Group 9th Edn, Pg 924)
Mr. Cyprian Wekesa and Mr. Edmond Wesonga (Instructed by firm of J.A. Guserwa & Company Advocates) for the 1st Appellant
Mr. Okweh Achiando (Instructed by the firm of Okweh Achiando & Company Advocates) for the 2nd to 8th Appellants
Ms. Fredah Mwanza and Ms. Magdelene Ngalyuka (Instructed by the Office of the Director of Public Prosecutions) for the 1st Respondent
Mr. Ben Murei (Instructed by the Office of the Ethics & Anti-Corruption Commission) for the 2nd Respondent