Case ID:91067

Republic v Kenya National Highways Authority & 2 others ex-parte Amica Business Solutions Limited [2016] eKLR

Case Metadata

Case Number:

Civil Appeal 114 of 2013

Parties:

Republic v Kenya National Highways Authority, City Council of Nairobi & Ikon Prints Media Company Limited ex-parte Amica Business Solutions Limited

Date Delivered:

04 Nov 2016

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Judgment

Judge(s):

Wanjiru Karanja, Mohammed Abdullahi Warsame, George Benedict Maina Kariuki

Citation:

Republic v Kenya National Highways Authority & 2 others ex-parte Amica Business Solutions Limited [2016] eKLR

Case History:

Being an appeal from the Judgment and Decree of the High Court of Kenya at Nairobi (Korir J.) dated 8th March 2013 in HC JR Case No. 246 of 2012)

Court Division:

Civil

County:

Nairobi

History Docket No:

JR Case No. 246 of 2012

History Judges:

Weldon Kipyegon Korir

Case Summary:

Whether the Court of Appeal would interfere with a discretionary decision of the High Court declining to quash a decision which it found to have been made through a process that was unconstitutional

Republic v Kenya National Highways Authority & 2 others Ex-parte Amica Business Solutions Limited

Civil Appeal No 114 of 2013

Court of Appeal at Nairobi

W Karanja, M Warsama & G B M Kariuki, JJ A

November 4, 2016

Reported by Beryl A Ikamari

Civil Practice and Procedure

-appeals-judicial discretion-the exercise of judicial discretion by a High Court judge-circumstances under which the Court of Appeal would interfere with the exercise of discretion by the High Court-whether the Court of Appeal would interfere with a High Court decision declining to quash a decision which it found to have been made through a process that was unconstitutional-Court of Appeal Rules, 2010, rule 29(1).

Limitation of Actions

-judicial review proceedings-limitation period applicable to the remedy of certiorari-whether time would start to run at the point of making or issuing the decision or it would start to run at the point that the Applicant knew of the decision-whether a letter made in response to another letter was a decision, under order 53 rule 2 of the Civil Procedure Rules, to which the prescribed limitation period was applicable-Civil Procedure Rules 2010, order 53 rule 2.

Statutes

-Civil Procedure Rules-prescribed time for instituting judicial review actions-nature of what would amount to a decision under order 53 rule 2 of the Civil Procedure Rules-nature of decisions to which the prescribed time limits were applicable-whether a letter made in response to another letter, without being the result of formal proceedings, would amount to a decision to which the prescribed time limits under order 53 rule 2 of the Civil Procedure Rules were applicable-Civil Procedure Rules 2010, order 53 rule 2.

Constitutional Law

-constitutionality of legal processes-constitutionality of mechanisms used to grant approval for the construction of billboard and gantries by the Kenya National Highways Authority-where those mechanisms were declared invalid on grounds of unconstitutionality–whether the High Court could grant an order of temporary validity of those mechanisms on grounds that the mechanisms had been applicable since the inception of the Authority to all applicants and it would be inappropriate to terminate a few contracts while many others were in effect.

Brief facts

The Applicant was aggrieved by the decision of the Kenya National Highways Authority, the 1

st

Respondent, which granted approval to the 3

rd

Respondent, Ikon Prints Media Company Limited, to erect and maintain billboards and gantries on road reserves on various roads within Nairobi. The Applicant sought orders of

certiorari

to quash the decision and an order of

mandamus

for the removal of billboards and gantries erected pursuant to that decision.

The Applicant's complaint was that the power to grant such approval was within the mandate of the City Council of Nairobi (and its successor the Nairobi City County Government) and that approval could only be granted after a tender process had been undertaken. The 1

st

Respondent asserted that it had powers under the Kenya Roads Act to grant approval to any person or body to lay structures or carry out any kinds of works on, over or below the roads and road reserves under its territorial jurisdiction. It also said that the grant of that approval was not a form of procurement or disposal as defined in the Public Procurement and Asset Disposal Act. It explained that competitive bidding for purposes of Thika Road was to be done as the road was new and its design included installation of advertisement billboards.

The 1

st

Respondent stated that the Applicant lacked sufficient interest in the matter and had not made any application to use road reserves. Therefore, it said that the Applicant did not have the

locus standi

necessary to institute the suit. The 1

st

Respondent also argued that the application was statute barred as it was brought six months after the alleged decision was made.

The 2

nd

Respondent stated that it ought to be struck out as a party as it was not involved in granting approvals, complained of, for the construction of billboards and gantries. The 3

rd

Respondent also stated that the suit was time barred and the Applicant lacked

locus standi

to institute the suit. It stated that it had properly obtained approval from the 1

st

Respondent for the erection billboards and gantries.

The proceedings were consolidated with JR No. 202 of 2012 and Petition No. 245 of 2012 which also concerned the issue of approvals for the construction of billboards and gantries on road reserves. Petition No. 245 of 2012 raised additional issues on violations of the Petitioner's rights under articles 10, 27, 35(3), 40, 46, 47 and 227 of the Constitution of Kenya 2010.

At the High Court the suit was dismissed. The High Court however found that the 1

st

Respondent's system / procedure of award of rights for erection of billboards and gantries for advertisement was in breach of articles 10 and 227 of the Constitution and therefore unconstitutional. The High Court directed the 1

st

Respondent to stop using the procedure and adopt mechanisms for ensuring compliance with the Constitution. The High Court found that given that the procedure had been used since the 1

st

Respondent came into existence and it had been applied to all in the industry, it would be unjust to terminate the agreements that were already in existence. Against the High Court decision an appeal was filed at the Court of Appeal.

Issues

Whether the High Court properly exercised its judicial discretion in refusing to grant quashing orders against a decision which it found to have been made through a process that was unconstitutional.

Under what circumstances would the Court of Appeal interfere with a judge’s exercise of judicial discretion?

Whether the application for

certiorari

was time barred in light of the six months limitation period provided for under section 9 of the Law Reform Act and order 53 rule 2 of the Civil Procedure Rules.

To what decisions did the provisions of order 53 rule 2 of the Civil Procedure Rules, on the time allowed for filing applications, apply?

Under what circumstances would the High Court grant an order of temporary validity of legal provisions that were found to be unconstitutional?

Held

Rule 29(1) of the Court of Appeal Rules set out the mandate of the Court of Appeal on a first appeal and the Court's mandate was to reappraise the evidence and draw inferences of fact. The Court of Appeal would not interfere with the exercise of judicial discretion unless it was satisfied that the judge misdirected himself and arrived at a wrong decision or that it was manifest that the judge was clearly wrong in the exercise of discretion and had occasioned an injustice.

The relief sought by the Appellant was discretionary. The claim that discretion was abused was based on the High Court's failure to quash a decision which it found to be a decision made in breach of articles 10 and 227 of the Constitution.

The High Court found that the procedure used to approve the construction of billboards and gantries breached the provisions of article 10 and 227 of the Constitution. However, it found that the procedure had been in force since the inception of the Kenya National Highways Authority and it was applied to all parties indiscriminately. The High Court tried to balance the parties' interests. There were many instances in which that procedure had been used successfully and the High Court decided not to isolate two instances in which it was used by granting quashing orders.

The grounds on which the Court of Appeal could interfere with the exercise of judicial discretion are the following:-

That the judge misdirected himself in law;

That the judge misapprehended the facts;

That the judge took into account considerations which he should not have taken into account;

That the judge failed to take into account considerations which he should have taken into account; and

That the discretionary decision was wrong.

The case transcended the sphere of judicial review and incorporated aspects of constitutionality. The judge took the view that despite breaches of articles 10 and 227 of the Constitution, the existing contracts were to be enforced and directed the 1

st

Respondent to adopt measures to change the situation in future.

Article 10 and 227 of the Constitution did not constitute part of the non-derogable rights whose enjoyment could not be limited. Those provisions were to be interpreted in a purposive manner taking into account the circumstances of the case and the justice of the case without necessarily adhering to a textual interpretation.

It was the Court's responsibility to ensure that executive action was properly exercised and to refuse to countenance behaviour that threatened basic human rights and the rule of law. It was in order for the High Court to interrogate the procedures applied in issuing the licences in question.

The High Court was to be guided by the principle of fairness. It was while having regard to the principle that the High Court found that revoking the permission already granted to the Respondents and Interested Parties, while many others including two interested parties, had benefitted from the same process would not serve the ends of justice.

Considering that the Appellant did not demonstrate that he had applied for approval to construct billboards and gantries in the same manner as the 3

rd

Respondent, the High Court could not be faulted in finding that he failed to discharge the burden of showing that he was prejudiced by the actions of the 1

st

Respondent.

The High Court was within the law in declaring that the process used to grant authorization was unconstitutional but at the same time declining to quash the authorizations complained of. One of the remedies available in judicial review was a declaration of temporary validity. The law gave the Court discretionary power to grant an order of temporary validity of otherwise unconstitutional law or acts in the interests of justice and good government. The Court had power to make any orders that were just and equitable, including an order suspending the declaration of invalidity for any period and on any conditions to allow the competent authority to correct the defect.

The grant of orders suspending a declaration of invalidity was not expressly provided for in the Constitution of Kenya 2010. However, the concept was progressive and such a remedy would promote the constitutional attributes of equality, justice, fairness and non-discrimination as espoused in the Constitution.

The Appellant made the application beyond the six months period allowed for instituting judicial review proceedings. The High Court found that the six months period was applicable to applications for all orders of

certiorari

and also stated that in some cases, the six months period would operate from the date the Appellant knew about the decision. On the face of it, it was difficult to appreciate the High Court's finding that the application was statute barred while acknowledging that it could be made and considered within six months from the date that the Appellant knew of it.

The decision complained of was unique in the sense that there were no formal proceedings which culminated in its making. The decision was a letter responding to the 3

rd

Respondent's request for permission to erect and maintain billboards and gantries. It was questionable whether that communication amounted to a decision as contemplated under section 9(3) of the Law Reform Act and order 53 rule 2 of the Civil Procedure Rules.

There was debate as to whether order 53 rule 2 of the Civil Procedure Rules applied strictly to any judgment, order, decree or conviction or other proceedings or whether that also included decisions of other kinds, or letters such as the one that was the subject of the case. Order 53 rule 2 was meant to cover both judicial and quasi-judicial proceedings, where there was a hearing and all affected parties were informed or were aware of the proceedings and where there was a judgment or decision capable of being disseminated and accessed by all affected parties. That did not cover letters sent to specific persons in response to their letters, which were not copied to other ostensibly interested parties.

The six months limitation period did not apply to decisions made by administrative bodies which were outside of the purview of the definition of decision, judgment, order, decree or other proceedings as contemplated under order 53 rule 2 of the Civil Procedure Rules.

The Appellant was not part of the process leading to the impugned letter. Therefore, he could not have known of the letter and challenged it within the time prescribed for judicial review matters. Therefore, the Appellant was not statutorily time barred in moving the Court for orders of

certiorari

.

Appeal dismissed.

History County:

Nairobi

Case Outcome:

Appeal dismissed.

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

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: KARANJA, WARSAME & G.B.M. KARIUKI, JJ.A)

CIVIL APPEAL NO. 114 OF 2013

BETWEEN

REPUBLIC…………………….………………..…………….….APPELLANT

AND

KENYA NATIONAL HIGHWAYS AUTHORITY…………..1

ST

RESPONDENT

CITY COUNCIL OF NAIROBI ……………………....……2

ND

RESPONDENT

IKON PRINTS MEDIA COMPANY LIMITED……………..3

RD

RESPONDENT

EX-PARTE – AMICA BUSINESS SOLUTIONS LIMITED

(Being an appeal from the Judgment and Decree of the High Court of Kenya at Nairobi (Korir J.) dated 8

th

March 2013

in

HC JR Case No. 246 of 2012)

*******************

JUDGMENT OF THE COURT

By a notice of motion application dated 12

th

June 2012, Amica Business Solutions Limited (hereinafter referred to as “the applicant”), brought judicial review proceedings namely

JR No. 246 of 2012

aggrieved by the respective decisions by Kenya National Highways Authority (hereinafter “the 1

st

respondent”) and City Council of Nairobi (hereinafter “the 2

nd

respondent”) pursuant to which Ikon Prints Media Company Limited (hereinafter referred to as “ the 3

rd

respondent”) sought to erect and maintain billboards and gantries on road reserves on various roads in the city of Nairobi. Specifically, the applicant sought:-

a) an order of certiorari removing into the High Court and quashing the entire decision of the 1

st

respondent contained in its letter dated 10

th

November 2011 to the 3

rd

respondent authorizing the latter to erect and maintain billboards and gantries on road reserves on various roads in the city of Nairobi city of Nairobi;

b) an order of certiorari removing into the High Court and quashing the entire decision of the 2

nd

respondent contained in its letters dated 23

rd

April 2012 and 2

nd

May 2012 to the 3

rd

respondent authorizing the latter to erect and maintain billboards and gantries on road reserves on various roads in the city of Nairobi;

c) an order of mandamus compelling and directing the 2

nd

respondent to remove and / or direct the removal of all billboards and gantries erected and maintained by the 3

rd

respondent pursuant to the authorization and approval through letters dated 23

rd

April 2012 and 2

nd

May 2012 from the 2

nd

respondent to the 3

rd

respondent.

Leave to commence the judicial review proceedings was granted on 12

th

June 2012. The Judicial Review application was premised on the grounds on its face and was supported by the statutory statement and a verifying affidavit sworn by the applicant’s director, Joseph Ndichu. The crux of the applicant’s case is that any lawful authorization that could have been given to the 3

rd

respondent had to comply with the constitution of Kenya 2010, the Kenya Roads Act No. 2 of 2007, the Local Government Act Cap. 265, and the Public Procurement and Disposal Act No.3 of 2005, all of which mandate the 1

st

and 2

nd

respondents to procure the use of their services and facilities in a fair, equitable, transparent, competitive and cost effective manner. The authorization given to the 3

rd

respondent was to be subject to tendering and the taking into account that the powers of licensing and control of outdoor advertising and physical planning are powers exercisable by the 2

nd

respondent only as a county government and not the 1

st

respondent. The applicant’s case is also that the 1

st

and 2

nd

respondents have subverted and frustrated the legitimate expectation by the public in failing to procure the use of their facilities and services in a fair, equitable and transparent, competitive and cost effective manner and have aided the 3

rd

respondent in defrauding the public. Further, that the respondent is mandated and obliged by the Physical Planning Act Cap. 286 of the laws of Kenya to remove the offending billboards and gantries but had failed to do so.

The application was opposed by the 1

st

respondent through an affidavit sworn on 12

th

September 2012, by Joseph Simiyu Khisa, a manager at the planning section of the 1

st

respondent. The 1

st

respondent asserted that it has powers under the Kenya Roads Act to grant approval to any person or body to lay structures or carry out any kinds of works on, over or below the roads and road reserves under its territorial jurisdiction. The 1

st

respondent thus exercised this authority in favour of the 3

rd

respondent. Its practice is neither monopolistic nor single sourcing to qualify as a ‘procurement’ or ‘disposal’ as defined in the Public Procurement and Disposal Act, 2005. The 1

st

respondent argued that it is not expected to know which sections of its road suit various parties and it is for the interested party upon identifying a suitable section to apply and this process is not time bound. The 1

st

respondent denied backdating the letter dated 10

th

November 2011 approving the 3

rd

respondent’s application. In reference to the letter dated 29

th

May 2012 in which the 1

st

respondent indicated to the 2

nd

respondent that advertisement on Nairobi

– Thika road would be subjected to competitive bidding, the 1

st

respondent submitted that the bidding was specific to that road which is a new super highway and its design included the installation of advertisement billboards. The 1

st

respondent denied usurping the powers of the 2

nd

respondent to approve placement of advertisements on billboards and gantries. The 1

st

respondent attacked the applicant’s locus on the ground that the applicant had not established sufficient interest in the matter or presented an application for use of the road reserves. The 1

st

respondent also argued that the application is statute barred since its prayer for certiorari was brought over six months after the alleged decision was made.

The 2

nd

respondent opposed the application through an affidavit sworn by Mr. A. J. Owuor, its director of legal affairs. The main ground of objection is premised on the provisions of

Order 53 rule 2

of the Civil Procedures Rules 2010 and section

9(2)

and 3 of the Law Reform Act (Cap. 26 Laws of Kenya). In the alternative, the 2

nd

respondent reiterated the mandate of the 1

st

respondent under the Kenya Roads Act to include regulation of advertisement rights on national roads and road reserves. The 2

nd

respondent submitted that it was aware of the letter dated 10

th

November 2011 granting advertisement rights to the 3

rd

respondent which rights the 2

nd

respondent did not object to in terms of its letters dated 23

rd

April 2012 and 2

nd

May 2012. The 2

nd

respondent indicated that it had informed the Outdoor Advertising Association of Kenya through a letter dated 30

th

July 2012 that the issue of construction of advertisement structures was vested in the 1

st

respondent. The 2

nd

respondent also argued that the grant of advertisement rights by the 1

st

respondent is not an act of procurement capable of breaching as purported in the application.

A further affidavit on behalf of the 2

nd

respondent was sworn by Karisa Iha, the acting legal affairs director. This affidavit made reference to the 2

nd

respondent’s regulations and policy guidelines regarding advertisements on road reserves, pointing out tha

t

approval and constructions of gantries and bill boards is the exclusive mandate of the 1

st

respondent. The 2

nd

respondent thus argued that the actions complained of did not contravene any of the 2

nd

respondent’s policies or regulations. To the extent that the 2

nd

respondent neither approved nor constructed any gantries and bill boards nor approved any display of advertisement messages on road reserves, the 2

nd

respondent was non suited and should be struck out as a party to this application and any claim against it dismissed

in limine.

The 3

rd

respondent opposed the application by way of replying affidavit dated 18

th

December 2012, sworn by Chukwuma Nduche. The 3

rd

respondent assailed the application for being statute barred, indicating that it had actually been discharged from

JR No. 202 of 2012

on the same ground. The 3

rd

respondent stated that the 1

st

respondent acted within the law in approving the 3

rd

respondent’s application to construct gantries and billboards on road reserves. The deponent further stated that the 2

nd

respondent had been improperly suited as the role of the 2

nd

respondent was limited to advertising and not erection of billboards and gantries. The 3

rd

respondent attacked the applicant for being a busy body with no sufficient interest in the matter and for being driven by malice against the 3

rd

respondent. The 3

rd

respondent also stated that the procedure it had used to obtain the permission of the 1

st

respondent for use of road reserves is the same procedure used by other players in the industry.

By a consent entered by the parties before the High Court on 10

th

October 2012, the above proceedings were consolidated with two other proceedings brought in respect of a similar matter. These were

JR No. 202 of 2012

and

Petition No. 245 of 2012.

The parties to

JR No. 202 of 2012

were Real Deals Limited (the

ex parte

applicant), Kenya National Highways Authority (respondent and the 1

st

respondent herein), Alliance Media Kenya Limited (1

st

interested party), Magnate Ventures Limited (2

nd

interested party) and Ikon Prints Media Limited (3

rd

interested party and the 3

rd

respondent herein) while

Petition

No. 245 of 2012

was between Look Media Limited, Standard Group Limited, Widereach Limited, Supreme Outdoors Limited, Live Ad Limited, Krenim Investment Limited, Consumerlink Communications Limited and Adsite Limited being the 1

st

to 8

th

petitioners against Kenya National Highway Authority and the Attorney General as respondents with the City Council of Nairobi, Ikon Prints Media Limited and Alliance Media Kenya Limited being the 1

st

to 3

rd

interested parties respectively.

The application for consideration in

JR No. 202 of 2012

related to seeking orders of

certiorari

to quash the decisions of the respondents contained in letters dated 19

th

March 2012 and 4

th

May 2012 from the respondent to the 1

st

and 2

nd

interested parties awarding the said interested parties contracts for the erection and maintenance of billboards and gantries on road reserves. The application was premised

inter alia

on the ground that the 1

st

respondent contravened the provisions of the Constitution, the Kenya Roads Act and the Public Procurement and Disposal Act in allowing the rights to the interested parties therein to erect billboards and gantries without tendering. Further, that the 1

st

respondent’s action was

ultra vires

since the award of rights contravenes the

Fourth

schedule Part 3

of the Constitution which vests the power of control of outdoor advertising upon the counties. The application invoked the provisions of

sections 22(2) (d)

and 40(1) of the Kenya Roads Act

that required approval by Minister, and gazettement of fees and charges. The applicant therein also relied on

Article 227

of the Constitution in that the 1

st

respondent’s actions amounted to single sourcing and preferential treatment. The application met strong opposition and resistance from the respondent and interested parties therein.

The

Petition No. 245 of 2012

on the other hand sought similar order of certiorari to quash the 1

st

respondent’s decision authorizing the putting up of billboards and placing of advertisements on gantries erected on road reserves. The petitioners further sought a declaration that the 1

st

respondent’s decision to authorize the erection of gantries and other advertising signs on the road reserves contravenes the Petitioners’ rights protected under

Articles 10, 27, 35(3), 40, 46, 47

and

227 of the Constitution of Kenya 2010

. The petitioners also sought an order restraining the respondents from permitting a few advertisers to put up gantries and other advertising materials on the road reserves and a declaration that the 1

st

respondent’s decision to authorize the placing of advertisement on the gantries constructed on the road reserves as

ultra vires

its mandate set out in the Kenya Roads Act. The petition also arose out of the 1

st

respondent’s letter dated 19

th

March 2012 allowing a select group of advertisers to erect gantries for purposes of displaying advertising signs on road reserves. The Petition was opposed by the 1

st

respondent herein and the Attorney General all of whom reiterated that the 1

st

respondent acted in line with the legitimate obligations. The 2

nd

and 3

rd

respondents herein also opposed the petition.

Largely, the three proceedings involved a similar dispute and the respective parties herein adopted the same position across the cases. In the end and the issues in the three proceedings as consolidated having been argued out by the respective parties, the trial judge summarized the issues for determination as follows:-

1. whether the 1

st

respondent has authority to give approvals for the use of road reserves;

2. whether the approvals given to the interested parties ought to have been subjected to the procurement process provided by the Public Procurement and Disposal Act;

3. whether there is breach of any of

Articles 10, 27, 35(3), 40, 46, 47 and 227

of the Constitution;

4. whether the applicants and the petitioners have locus standi;

5. whether the 1

st

respondent in issuing the approvals to the interested parties usurped the role of the 2

nd

respondent; and

6. who should meet the costs of the proceedings.

By a judgment delivered on 8

th

March 2013, the two judicial review proceedings and the petition were dismissed. The trial judge found that the 1

st

respondent’s system / procedure of award of rights for erection of billboards and gantries for advertisement was in breach of

Articles 10

and

227

of the Constitution and therefore unconstitutional. The court directed the 1

st

respondent to cease using the said procedure and put in place mechanisms for ensuring compliance with the Constitution. Each party was to bear its own costs. In its decision, the court took into account the competitive nature of advertisement business and required the 1

st

respondent to at the very least indicate to all and sundry that it intended to grant permission for the use of road reserves in the manner in question. All interested parties would then have had the opportunity of expressing their interest thereby assuring everyone that its operations are transparent and accountable bearing in mind that the 1

st

respondent is a public entity.

The petition failed in so far as the orders sought were directed at the agreements entered into between the 1

st

respondent and the interested parties. This was because the respondents and interested parties had shown that the process used by the 1

st

respondent to grant permission to the interested parties to put up structures on road reserves was a process that has been in place since the 1

st

respondent came into existence. Some of the applicants and petitioners had used the process in the past as confirmed by the letters dated 10

th

May 2012 and 29

th

May 2012. The trial judge also noted that the practice used by the 1

st

respondent was applied to all the players in the industry without any discrimination. It would therefore be unjust for the court to terminate the agreements already entered into between the 1

st

respondent and the interested parties.

Aggrieved by this decision, the applicant in the lead proceedings being

JR No. 246 of

2012

lodged its notice of appeal under

Rule 75

of this Court’s rules. The notice is dated 12

th

March 2013 and was filed on 14

th

March 2013 before the High Court and on 25

th

March 2013 before this Court. The record of appeal dated 3

rd

June 2013 comprising the memorandum of appeal was filed on 5

th

June 2013 and lists six grounds of appeal thus:-

1. the learned Judge of the High Court erred in law and abused his discretion in refusing to quash the decision of the 1

st

respondent authorizing the 3

rd

respondent to erect and maintain billboards and gantries on road reserves in various roads in the city of Nairobi despite his findings, holdings and declaration that the 1

st

respondent’s decision was made in breach of the Constitution and

Statutes that govern public procurement and disposal;

2. the learned Judge of the High Court erred in law and abused his discretion in refusing to quash the decision of the 2

nd

respondent authorizing the 3

rd

respondent to erect and maintain billboards and gantries on road reserves in various roads in the city of Nairobi

despite his findings, holdings and declaration that the billboards and gantries were being erected and maintained in contravention of the Constitution and Statutes that govern public procurement and disposal;

3. the learned Judge of the High Court erred in law and abused his discretion in refusing to compel the 2

nd

respondent to remove the billboards and gantries erected and maintained by the 3

rd

respondent notwithstanding the fact and holding that the same were erected and maintained in contravention of the Constitution and Statutes that govern public procurement and disposal and the express Statutory requirement that any such billboards and gantries be removed;

4. the learned Judge of the High Court erred in law in holding that the ex parte applicant’s request for certiorari was barred by limitation despite express provisions of the Constitution and Statute to the contrary and the existence of a dispute as to when the decision sought to be quashed was made known to the ex parte applicant;

5. the learned Judge of the High Court erred in law in disregarding the ex parte applicant’s submissions and refusing to follow binding and persuasive decisions on public procurement and disposal which required that the remedies sought by the ex parte applicant be granted, upon proof that the 1

st

, 2

nd

and 3

rd

respondents had contravened the Constitution and Statute in their use of public assets without resort to a system that is fair, equitable, transparent, competitive and cost effective;

6. the learned Judge of the High Court erred in law in holding that it would be unjust to terminate the agreement entered into between the 1

st

and 3

rd

respondents pursuant to the said unconstitutional and illegal decision of the 1

st

respondent yet that was not a consideration, a contravention of the constitution and statute in the making of the decision and agreement having been proven.

The applicant, now the appellant seeks orders setting aside the judgment and decree of the High Court made on 8

th

March 2013 in so far as it relates to the applicant’s notice of motion dated 12

th

June 2012. The appellant prays that the said notice of motion application be allowed.

On this Court’s direction, all the parties affected by the High Court decision were incorporated in this appeal and were at liberty to proceed as provided under

rules 92(1),

93 and 94

of the Court of Appeal’s rules. When the matter came for hearing and disposal, the Court ordered that all the affected parties wishing to be brought on board be at liberty to take necessary steps and file a supplementary record. The Court directed that the appeal proceeds by way of written submissions giving the necessary timelines for compliance. The appellant, the 1

st

and 3

rd

respondents filed their written submissions while the other parties made oral submissions through their advocates on record.

From its written submissions, the appellant condensed its arguments into two grounds of appeal – abuse of discretion by the learned judge and limitation of time. On the first issue, the appellant faults the judge’s conclusion not to terminate the existing agreements having found as a matter of fact and law that the 1

st

respondent had contravened

Articles

10 and 227

of the Constitution. The appellant argues that the judge’s decision amounts to sanctioning an illegality. The appellant referred us to

Heptulla v Noormohamed [1984]

KLR 586

where the court held that the court should not allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract which is illegal. The appellant also referred to

Republic v City Council of Nairobi & another ex-parte

Monier 200 Limited & 7 others [2005] eKLR

where the court nullified an advertising contract procured in contravention of procurement law, however noble the idea intended in the contract was. Similarly, in

Republic v Municipal Council of Mombasa &

another, ex parte Uniken Marketing Services Limited [2007] eKLR

, an order of

certiorari

was granted, the Local authority having been found to have acted

ultra vires

the provisions of the Local Government Act, the contracts made not having been subjected to public tender. It is the appellant’s submission that the trial judge, in failing to issue the order of

certiorari,

had engaged in judicial craft as stated by the Supreme Court of Kenya’s decision in

Samuel Kamau Macharia& Another v Kenya Commercial

Bank Limited & 2 others [2012] eKLR

.

As for the second ground on limitation, the appellant submitted that the trial judge’s holding that the 6 months limitation period applies to all decisions including administrative decisions subject to the orders of

certiorari

failed to take into account the appellant’s case that the authorization letters issued by the 1

st

respondent had been backdated to support their plea of limitation. The appellant further submitted that the trial judge did not take into account that limitation would only kick in after the date the decision in issue is made known to the aggrieved party despite the judge’s own finding while relying on the case of

Nakumatt Holdings Limited v Commissioner of Value

Added Tax

in the following terms:-

“My understanding of the decision of the Court of Appeal is that a party who seeks an order of certiorari must bring the application within six months from the date of the decision. I will however add that in some cases one would say that the application should be filed within six months from the date the decisions made known to the claimant.

”

According to the appellant, a plain reading of the proviso of

Order 53 rule 3

of the Civil Procedure Rules confines the limitation to judicial decisions and not administrative decisions. The appellant faulted the trial judge’s dismissal without reasons of the case of

Republic v Judicial Commission of Inquiry unto the Goldenberg Affair & 3 others

ex parte Mwalulu & 8 others [2004] eKLR

. The appellant submitted that the decisions subsequent to Nakumatt Holdings Limited (supra) are in support of the submission that the 6 months limitation applies to judicial decisions only. The appellant referred to

Republic v Principal Registrar of Government Lands & another [2014] eKLR

which held that the 6 months limitation does not apply to administrative decisions. In conclusion, the appellant submitted that the judge abused discretion and this abuse warrants interference as was stated in

Nguruman Limited v Jan Bonde Nielsen & 2

others [2014] eKLR.

Ms. Ng’ania,

learned counsel, appeared on behalf of the appellant at the hearing. She relied on the filed submissions and list of authorities filed. Her submissions reiterated the filed submissions.

The 1

st

respondent also filed written submissions on 30

th

January 2015 and list of authorities. On the exercise of discretion, the 1

st

appellant submitted that the case required exercise of discretion and the superior court considered all the facts and circumstances of the case. Therefore, it properly exercised its discretion in dismissing the appellant’s application. The 1

st

respondent referred to the case of

Salkas Contractors

Limited v Kenya Petroleum Refineries Limited [2004]eKLR

where it was held that the appellate court should not interfere with the exercise of a discretion by the superior court unless satisfied that the superior court was wrong in its decision in exercising its discretion. The 1

st

respondent further submitted that the superior court considered what was just in the circumstances in line with the principal aim of the overriding objective to create a level playing ground for all the parties coming before the courts. To buttress this position, the appellant referred to the case of

Harit Sheth t/a Harit Sheth Advocate v

Shamas Charania [2010] eKLR.

On the dismissal of the certiorari application, the 1

st

respondent contended that contrary to the appellant’s assertions, the rule that an application for an order of

certiorari

ought to be commenced not later than six months after the date of the decision is absolute and not subject to any liberal interpretation. The 1

st

respondent relied on the case of

Ako v

Special District Commissioner Kisumu & another, Civil Appeal No. 27 of 1989

, where it was

inter alia

held that the prohibition set out in

section 9(3)

of the Law Reform Act is statutory and therefore not challengeable. In the premises, the prohibition is absolute and any contrary interpretation or view would be an affront to the clear statutory provision. The 1

st

respondent, relying on the case of

Aga Khan Education Service

Kenya v Republic ex parte Ali Seif & 3 others [2004] eKLR

, submitted that there was no prospect of success in the Appellant’s application for an order of certiorari as it was clear to the court that the same was filed after the lapse of six months from the time the decision was made. The 1

st

respondent submitted that the trial judge was correct in relying on the court of appeal decision in

Nakumatt Holdings Limited v Commissioner

of Value Added Tax [2011] eKLR

in holding that the six months rule applied to the appellant’s application and was not restricted to a judgment, order, decree, conviction or other proceedings.

Regarding the appellant’s allegation that the authorization letters had been backdated to enable reliance on the plea of limitation, the 1

st

appellant contended that this was a mere allegation as no proof or evidence was adduced by the appellant before the superior court in this respect. The 1

st

respondent concluded that the trial judge rightly and properly dismissed the Appellant’s application.

Mrs. C. Cheruiyot,

learned counsel appearing for the 1

st

respondent adopted the written submissions and list of authorities filed on behalf of the 1

st

respondent. Her oral submission highlighted the written submissions already set out above.

The 2

nd

respondent did not file written submissions.

Ms. Said,

Advocate, holding brief for

Prof. Ojienda,

senior counsel, was present at the hearing on behalf of the 2

nd

respondent. In her submissions, learned counsel adopted the submissions of the 1

st

and 3

rd

respondent. On the issue of discretion, counsel submitted that a judge is allowed to make obiter remarks. On the six months limitation, counsel submitted that the judges hands were tied as the limitation was statutory and the judge could not extend time. Failure to quash the decision therefore did not amount to discretion rather than upholding the legal position. Moreover, the trial judge had found that the same procedure had been followed in favour of many other parties and did not therefore find it necessary to cancel the contract. Counsel urged the court to dismiss the appeal with costs.

The 3

rd

respondent filed written submissions on 19

th

February 2016 opposing the appeal. At a preliminary level the 3

rd

respondent pointed out that the appellant was a party least interested in the outdoor advertising business and was being used by what it terms as the industry’s big wigs as a ‘gun for hire’. Accordingly, the suit in the trial court was merely calculated to block other entrants into the outdoor advertising industry which eats into the juicy advertising and marketing pie enjoyed by the cartels.

As to whether the appellant’s application is time barred, the 3

rd

respondent submits that the decision complained of having been made on 10

th

November 2011, the appellant ought to have sought to quash it by 9

th

May 2012. The application by the appellant having been filed on 12

th

June 2012 was therefore outside the 6 months period allowed by law. The respondent relied on

section 9(3)

of the Law Reform Act and

Order 53 rule 2

of the Civil Procedure Rules

.

The 3

rd

respondent submitted that the appellant conceded having brought the application outside the 6 months period.

The 3

rd

respondent further argued that it will not be enough for the appellant to make unsupported allegations of backdating the approval and expect the court to act on the same. Even if the appellant became aware of the approval of 10

th

November 2011 on such later date, the judge would not have come to the appellant’s aid in the absence of materials being placed before the court. The verifying affidavit of the appellant’s director Joseph Ndichu did not state any later date the approval was obtained. The 3

rd

respondent submitted also that the limitation period at

section 9(3) of the Law Reform Act

is a statutory provision and the Law Reform Act makes no provision for extension of time as to entitle the trial judge to enlarge time for filing an application for certiorari outside the 6 months period. The trial judge was therefore right in dismissing the appellant’s notice of motion application and the 3

rd

respondent implored the court of Appeal to affirm the trial courts position on time bar. The 3

rd

respondent referred to the case of

Milka Nyambura

Wanderi & Another v Principal Magistrate’s Court Murang’a & 4 others [2014] eKLR

where the court declined to grant leave as it was time barred, the application for leave having been made more than six months after the decision sought to be quashed.

The 3

rd

respondent submitted that the other two letters dated 23

rd

April 2012 and 2

nd

May 2012 issued to it by the 2

nd

respondent did not amount to approvals but were merely no objection letters, approvals having already been granted by the 1

st

respondent; that the letters were written pursuant to the 2

nd

respondent’s mandate under

Article 189

as read with

Part 2(3) of the Fourth Schedule

of the constitution; that this mandate involves control of pollution and other public nuisances and outdoor advertising; that to quash the two letters would be unconstitutional as the 2

nd

defendant would be stopped from carrying out its mandate.

On the second issue of exercise of discretion by the trial judge, the 3

rd

respondent submitted that the appellant has not brought itself within the parameters set to warrant the interference with the discretion of the trial judge and that the appellant has not demonstrated that the trial judge exercised his discretion improperly. The 3

rd

respondent cited the case of

Milka Nyambura Wanderi

(supra)

and

Hezekiah Kamau& Another

v Kamau Mukuna [2015] eKLR

both of which cited with approval the well known case of

Mbogo & Another v Shah [1968] EA 93

on the limited role of the appellate court with regard to a trial judge’s exercise of discretion.

The 3

rd

respondent also argued that the judge had correctly balanced the interests of the parties in failing to nullify the approvals it contended that to do so would have resulted in discrimination against the 3

rd

respondent as other players in the industry had used similar methods to get allocation of sites from the 1

st

respondent contrary to

Article 27

of the Constitution. The 3

rd

respondent prayed for dismissal of the appeal as it did not present any grounds upon which to interfere with the trial court’s decision.

Mr. Lutta

Advocate on behalf of the 3

rd

respondent relied on the written submissions dated 18

th

February 2016 and the list of authorities filed on the same date. Learned counsel associated himself with the position taken by counsel for the 1

st

and 2

nd

respondents. His oral submissions took the same path of the written submissions urging this Court to dismiss the appeal with costs.

Mr. Nyaburi O. Hiram, learned

counsel appearing on behalf of 10 interested parties, associated himself with the appellant’s submissions. He submitted that the judge’s hands were not tied on the issue of limitation and that there was no time limitation to grant certiorari under the constitution.

Mr. Michuki,

Advocate, appeared on behalf of Alliance Media Kenya Limited, one of the interested parties. He associated himself with submissions of counsel for the 1

st

and 3

rd

respondents in opposing the appeal.

Mr. Gitonga,

Advocate for Magnate Ventures Limited, remained neutral on the matter, but added that his client has been operating within the law.

Having set out the case as above, it is now appropriate to deal with the issues on appeal. It is evident that the two issues emerging in the appeal for our determination are: - appeal is founded on the following main grounds:-

a) whether the trial judge exercised his discretion properly in the circumstances;

b) whether the appellant’s application for an order of certiorari was time barred.

The Court of Appeal derives its appellate jurisdiction from

Article 164(3)

of the Constitution and

section 3(1)

of the Appellate Jurisdiction Act to hear appeals from the High Court such as the present appeal. The mandate of the Court of Appeal on a first appeal is set out in

Rule 29(1)(a)

of this Court’s Rules namely to re-appraise the evidence and to draw inferences of fact. This position has been restated in several Court of Appeal decisions including in the case of

Kenya Anti-Corruption Commission v

Republic & 4 others [2013] eKLR

.

Where the exercise of judicial discretion is involved, the exercise of which is called to our interrogation, we remain guided by the principles enunciated in

Coffee Board of Kenya v Thika Coffee Mills Limited & 2 others [2014]

eKLR

,

that we will not interfere unless we are satisfied that the judge misdirected self in some matter and as a result arrived at a wrong decision, or that it is manifest from the case as a whole that the judge was clearly wrong in the exercise of discretion and occasioned injustice by such wrong exercise.

Turning to the first issue on exercise of discretion by the learned judge, it is common ground that the relief sought by the appellant is discretionary in nature. The appellant is adamant that the trial judge abused his discretion while the respondents take the position that the said discretion was exercised appropriately in the circumstances. The extent to which this discretion is cudgeled is in the failure by the trial judge to quash the decision of the 1

st

respondent made through the letter dated 10

th

November 2011, even after finding that the respondents had been in breach of

Articles 10 and 227

of the Constitution. On the matter, the court addressed itself thus:-

“I therefore agree with the applicants and the petitioners that KeNHA has in the past acted in breach of the provisions of articles 10 and 227 of the Constitution.

…

In respect of these two applicants (Supreme and Adsite) one can say that they brought their applications in bad faith. It is also noted that the practice used by KeNHA was applied to all the players in the industry without any discrimination. It would therefore be unjust for this court to terminate the agreements already entered into between KeNHA and the interested parties.”

It is apparent that the trial judge tried to balance the interests of the parties in an attempt to be just in the circumstances. There seems to be no doubt that there are players in the industry who had successfully invoked the same procedure as that complained of. This position was not disputed by any of the parties. The trial judge singled out two of the applicants against whom the judge inferred bad faith. It would then beg the question as to why the trial judge would only quash one such procedure in isolation, yet there existed many other incidences, and two of the parties who were now complaining had benefitted from the same process they were now impugning. On the face of it, this is a logical explanation of the judge’s exercise of discretion but does it find favour under the existing laws?

Let us first consider the issue of a judge’s exercise of discretion and the circumstances under which we can interfere in the judge’s exercise of such discretion. Jurisprudence in this area is vast and the principles involved are now well settled. For instance, in the case of

United India Insurance Co. Ltd V.East African Underwriters (Kenya) Ltd [1985]

E.A 898

,

Madan J.A. (as he then was), aptly pronounced himself as follows, at page 908

:

“The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.”

It is not for the Court of Appeal to substitute the judge’s decision merely on the grounds that the judges of the court could have come to a different conclusion in the circumstances. The Court has to consider any or more of the grounds set out by Madan J.A as stated above.

As summarized above, a very strong argument has been made in support of the appeal and backed up by decided cases to the effect that the trial judge ought to have quashed the contract in favour of the 3

rd

respondent arising out of the disputed letter. Similarly, the respondents and interested parties who oppose the appeal argued that the trial judge acted in line with the overall objective to act justly. Those opposed to the appeal faulted the appellant’s appeal on grounds that the appellant had not brought himself within the parameters to warrant the appellate Court’s interference with such discretionary power and that in any event the appellate Court’s power to interfere with discretion should be exercised sparingly.

In our view, this case transcends the sphere of judicial review as it also incorporates the aspects of constitutionality. The effect of non compliance with statute is more settled in other statutes such as the Elections Act.

Section 83

of the Kenyan

Elections

Act

,

2011

states that:

“No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.”

This means that the judge needs to consider whether the non-compliance affects the result of the elections as was held in

Raila Odinga& 5 others v IEBC & others

,

Supreme

Court Petition No. 3 of 2013 (UR)

where it was inter alia held as follows:-

“196.....

Where a party alleges non-conformity with the

electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections. It is on that basis that the respondent bears the burden of proving the contrary. This emerges from a long-standing common law approach in respect of alleged irregularity in the acts of public bodies. Omnia praesumuntur rite etsolemniteresseacta: all acts are presumed to have been done rightly and regularly. So the petitioner must set out by raising firm and credible evidence of the public authority's departures from the prescription of the law.”

The above decision took into account the long standing common law approach in respect of alleged irregularities in the acts of public bodies that all acts are presumed to have been done rightly and regularly

.

This is the essence of the common law maxim

Omnia

praesumuntur rite etsolemniteresseacta.

The case involved the application and extent of the provisions of the Constitution. In the matter of

Kenya National Commission on Human Rights, Supreme Court Advisory

Opinion Reference No. 1 of [2012] eKLR

para 26 the Supreme Court said: -

“

But what is meant by a holistic interpretation of a Constitution? It

must mean interpreting the Constitution in context. It is contextual analysis of a constitutional provision reading it alongside and against other provisions so as to maintain a rational explication of what the Constitution must be taken to mean in the light of its history, of issues in dispute and of the prevailing circumstances.”

Applying the above principle to the present case, it is evident that the prevailing circumstances in the trial judge’s view warranted that the existing contracts be allowed to continue and that the 1

st

respondent do embark on measures to change the situation in future.

Article 25

of the Constitution specifies the constitutional rights and freedoms that may not been limited. These are;

(a) freedom from torture and cruel, inhuman or degrading treatment or punishment;

(b) freedom from slavery or servitude;

(c) right to fair trial; and

(d) right to an order of habeas corpus.

Though not enshrined under the bill of rights, any rights and freedoms conferred by

Articles 10 and 227

of the Constitution do not cease to be rights and fundamental freedom simply because they are in a part of the Constitution which does not fall under the Bill of Rights. (See

Elias Mwangi Mugwe v Public Procurement Administrative

Review Board & 5 Others

[2016] eKLR

).

The provisions of

Articles 10 and 227

of the Constitution are not among those non-derogable rights that cannot be limited. It is our view that they can be interpreted in a purposive manner that would take into account the circumstances and the justice of the case, without necessarily adhering to the textual interpretation. This does not mean that they should be disregarded at will. Far from that, all constitutional safeguards are meant to be observed particularly when they are meant to protect citizens from flagrant excesses by the Executive and those other organs that are charged with the responsibility to offer services to the people.

Where these safeguards are ignored, then the courts must step in.

As aptly pronounced in the case of

Republic vs. Returning Officer of Kamukunji

Constituency & The Electoral Commission of Kenya

, HCMCA No. 13 of 2008,

it is the responsibility of the court to ensure that executive action is properly exercised; that Parliament intended and that the High Court has the responsibility for the maintenance of the rule of law; that there cannot be a gap in the application of the rule of law; that the court must at all times embrace a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. Therefore where there is a lacuna with respect to enforcement of remedies provided under the Constitution or an Act of Parliament, or if, through the procedure provided under an Act of Parliament, an aggrieved party is left with no alternative but to invoke the jurisdiction of the court, the court is perfectly within its rights to investigate the allegations (See

Republic vs. Returning Officer of Kamukunji Constituency & The

Electoral Commission of Kenya (supra))

.

The court was therefore in order to interrogate the procedures applied to issue the licenses in question

.

However

,

courts should be liberal in the manner they go round dispensing justice. (See

Nation Media Group Limited vs. Attorney General [2007] 1 EA 261).

A court must always be guided by principles of fairness. In the case giving rise to this appeal, the learned judge was properly guided by the said principle. In his judgment, he expressed himself thus;

“This is a court of justice and a court of justice wields the sword of justice in a manner that delivers justice to all parties before it.”

It was with this in mind that the learned judge found that revoking the permission already granted to the respondents and the interested parties, while many others, including the two cited interested parties, had benefitted from the same process would not have served the ends of justice.

In the end and considering that the appellant who is aggrieved did not demonstrate that he had applied to be considered in the same manner as the 3

rd

respondent, the court cannot be faulted in finding that the appellant failed to discharge the burden that he was in any way prejudiced by the actions of the 1

st

respondent emanating from the letter dated 10

th

November 2011. This is so considering that there existed other such arrangements which were not subject to challenge.

Then comes the question; was the learned judge within the law to declare the process complained of unconstitutional but at the same time decline to quash the authorizations complained of? We hold that the learned judge was indeed within the law. Although the learned judge did not expressly state so, one of the remedies available in law in judicial review is the remedy of declaration of temporary validity. The law gives the court discretionary power to grant an order of temporary validity of otherwise unconstitutional laws or acts in the interests of justice and good government. The court has power to make any orders that are just and equitable, including an order suspending the declaration of invalidity for any period and on any conditions to allow the competent authority to correct the defect.

See

Executive Council, Western Cape Legislature& Others vs President of the

Republic of South Africa and Others

[1995 (4)] SA 877 (CC).

This remedy is expressly provided for in the South African Constitution.

Though not expressly provided for in our Constitution; it is our view that it is a progressive concept and such a remedy would promote the constitutional attributes of equality, justice, fairness and non-discrimination as espoused in our constitution. It is a remedy which has also been applied in our Courts

(

See

The Institute of Social

Accountability and others vs The national Assembly and others. Petition No. 71 of

2013

), where the High Court declared as unconstitutional and invalid the Constituency Funds Act, 2013, but suspended the order of invalidity for a period of 12 months from the date of judgment, and

Kenya Country Bus Owners’ Association & 8 others vs

Cabinet Secretary for Transport and Infrastructure and 5 others NRB JR No. 2 of 2014 [2014] Eklr

)

on suspension of some Traffic regulations.

The learned judge was therefore within the law when he declared the act unconstitutional but declined to cancel the contracts. He cannot be faulted for that.

Turning to the second limb of the appeal as to the limitation of time, the point of departure by the parties to the dispute is whether the letter by the 1

st

respondent is subject to the provision of

order 53 rule 2

of the Civil Procedure rules and

s

ection

9(3)

of the Law reform Act in so far as the 6 months limit period is concerned. This issue is two-fold. On the one hand, the argument is whether the limitation applies only to judicial decisions and not administrative actions and on the other hand is whether the six months period applies from the date of the decision or the date when the appellant knew about it. It is common ground that the appellant made the application beyond the six months period. In the absence of proof by the appellant that the 1

st

respondent backdated the approval, the line of argument is not persuasive. On the former, the trial judge found that the six months period applied to all applications for orders of

certiorari

while on the latter, the learned judge made what appears to have been an

obiter

remark to the effect that in some cases, the six months period would operate from the date the appellant knew about the decision. Interestingly, the learned judge still went on to hold that the appellant’s application was time barred.

On the face of it, it is difficult to appreciate the trial judge’s finding that the application was statute barred yet the judge acknowledged that the same could be made and considered within 6 months from the date the appellant knew about it. The respondents argued that the trial judge did not have authority to enlarge time and relied on decided cases that strictly uphold the timelines set out in the statute. The appellant on its part did not submit on the enlargement of time but instead relied on the trial judge’s indication as stated above. The appellant instead pursued the argument that the provisions of

order 53

rule 2

of the Civil Procedure Rules and

section 9(3)

of the Law Reform Act and cited case law to support this submission. Conversely, the respondents did not rebut the appellant’s arguments both in submissions or authorities cited.

The decision complained of is unique in the sense that the decision of the 1

st

respondent arose out of the request by the 3

rd

respondent. At no time were there formal proceedings leading to the decision. The decision was in a letter responding to 3

rd

respondent’s request for permission to erect and maintain billboards and gantries. The elephant in the room here is whether that communication qualifies as one of the acts contemplated under section

9 (3)

of the Law Reform Act and Order

53 Rule 2

of the Civil Procedure Rules.

There has been debate as to whether the six months limitation envisaged in order

53 Rule

2

of the Civil Procedure Rules applies strictly to

“any judgment, order, decree, or

conviction

,

or other proceedings’’,

or whether this also includes decisions of other kinds, or letters such as the one that is the subject of this case.

In our considered view,

Order 53 Rule (2)

was meant to cover both judicial and quasi-judicial proceedings, where there was a hearing; all affected parties were informed; or were aware of the proceedings and where there was a judgment or decision capable of being disseminated and accessed by all affected parties. This could not in our considered view have been meant to cover letters which were sent to specific persons in response to theirs which were not even copied to other ostensibly interested parties, like in the case here.

We are persuaded in this respect by the High Court decision in

The Goldenberg Affair

Ex-parte Hon. Mwalulu and Others, HCMA No. 1279 of 2004 [2004] eKLR

,

and

Republic vs The Commissioner of Lands Ex-parte Lake Flowers Limited Nairobi

,

H.C. Misc. Application No. 1235 of 1998

where the courts held that the six (6) months limitation period set out in

order 53 Rules 2 and 7

only applied to specific formal orders mentioned in

Order 53 Rules 2 and 7

and to nothing else, certainly not to contents of one private letter in response to another.

We are also persuaded by the Tanzania Court of Appeal decision in

Mobrama Gold

Corporation Ltd vs Minister for Water, Energy and Minerals and Others, Dar-es-Salaam Civil Appeal No. 31 of 1999 [1995

–

1998] 1 EA 199

in which case the court held that the phrase “

or other proceedings”

has to be construed

ejusdem generis

with ‘

judgment, order or decree, and conviction

’’ as having reference to judicial or quasi-judicial proceedings as distinct from the acts and omissions for which certiorari may be applied for. We hold the view therefore that the six months limitation would not apply to “decisions” made by administrative bodies which fall outside the purview of the definition

“decision, judgment, order, decree or other proceedings”

as contemplated under

Order 53 rule2

of the Civil Procedure Act.

Moreover, the Appellant was not part of the process leading to the impugned letter. He could not therefore have known of the letter with a view to challenging it within the time prescribed under judicial review. It is our view therefore that the Appellant was not statutorily time barred in moving the court for orders of certiorari as he did.

In conclusion therefore, having considered the appeal before us, the very able submissions of all counsel herein, the law, facts and cases cited to us, we come to the inevitable conclusion that save for that small clarification on limitation of time, this appeal must fail. Accordingly, we dismiss it with orders that each party bears its own costs.

Dated and delivered at Nairobi this 4

th

day of November, 2016.

W. KARANJA

................................

JUDGE OF APPEAL

M. WARSAME

....................................

JUDGE OF APPEAL

G. B. M. KARIUKI

...............................

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR