Republic v Kenya National Examination Council & 2 others; Chairman and Form Four Parents’ Association 2018 Ikhlas Interegrated High School (Suing on Behalf of parents of Ikhlas Intergrated High School) (Exparte) [2022] KEHC 18085 (KLR)

Republic v Kenya National Examination Council & 2 others; Chairman and Form Four Parents’ Association 2018 Ikhlas Interegrated High School (Suing on Behalf of parents of Ikhlas Intergrated High School) (Exparte) (Judicial Review Application 36 of 2019) [2022] KEHC 18085 (KLR) (Judicial Review) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 18085 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application 36 of 2019

J Ngaah, J

October 14, 2022

Between

Republic

Applicant

and

Kenya National Examination Council

1st Respondent

Ministry of Education

2nd Respondent

The Hon. Attorney General

3rd Respondent

and

Chairman and Form Four Parents’ Association 2018 Ikhlas Interegrated High School (Suing on Behalf of parents of Ikhlas Intergrated High School)

Exparte

Ruling

1. By a notice of motion dated February 20, 2019, the applicant sought orders of certiorari, mandamus and prohibited against the 1st and 2nd respondents. The motion was brought under sections 8 and 9 of the Law Reforms Act, Cap 26 and Order 53 Rules 1, 2, 3 and 4 of the Civil Procedure Rules.

2. Among the responses filed against the application was a notice of preliminary objection dated March 4, 2019 filed by the 1st respondent. The objection was on the ground that the application for Judicial Review was incompetent as it violated section 9 of the Fair Administrative Action Act No 4 of 2015 as read with Part IV A of the Kenya National Examination Council Act 2012. Section 9 (2) of the Fair Administrative Action Act reads as follows:'(2)The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.'

3. In a nutshell the 1st respondent’s case in this objection was that the applicant had not exhausted the appeal procedures for resolution of the dispute that it had brought before court.

4. The objection was overruled by Nyamweya J (as she then was) in a ruling rendered on July 18, 2019.

5. The 1st respondent appealed against the ruling in the Court of Appeal. The appeal is yet to be heard and determined.

6. In the meantime, following directions given on the main motion, parties filed and exchanged written submissions on the motion.

7. While the motion was pending judgment, the 1st respondent filed an application to arrest the judgment. The application is by way of a motion dated June 26, 2022 and it is this motion that is the subject of this ruling.

8. The application is mainly on the ground that the issue whether the jurisdiction of this Honourable Court has been properly invoked is pending determination before the Court of Appeal and it is only prudent for this Honourable Court to hold its horses and await the decision of the Court of Appeal.

9. I agree with the 1st respondent that the question whether the applicant ought to have filed an appeal to the National Examination Appeals Tribunal before moving this Honourable Court for prerogative orders of judicial review is a live question before the Court of Appeal.

10. If the Court of Appeal overturns the decision of Nyamweya, J (as she then was), these proceedings and judgment that may be made in purported determination of the suit will be rendered a nullity.

11. In order to forestall such an eventuality, it is prudent that these proceedings are stayed pending the determination of the appeal filed in the Court of Appeal.

12. I will therefore hold the delivery of the judgment on the substantive motion for judicial review in abeyance until the Court of Appeal delivers its decision on the appeal that has been lodged before it.It is so ordered.

SIGNED, DATED AND DELIVERED ON 14 OCTOBER 2022NGAAH JAIRUSJUDGE