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B R N 14 CIVIL LITIGATION 21 — Transcript

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0:03Good evening. I wanted to ask a question
0:06I saw in a past and I didn't really
0:08understand it.
0:10>> Just one second.
2:00Sorry, Susan.
2:09>> I was asking,
2:11>> can you hear me?
2:14>> Yes.
2:15I was asking I saw in a past paper that
2:18was asking and it was something to do
2:19with a point of blow. So they were
2:21asking about an objection. So they said
2:23you plead it in a pleading. So so you
2:26cannot use a notice of preliminary
2:28objection any can you do that because I
2:30was I put that question in and
2:35I'm not I'm not I'm not following what
2:37is the question.
2:38>> So the question was it was a passive
2:40question. Mhm.
2:43>> It raised there were some facts and then
2:45it raised a point of law. There was no
2:47cause of action or something.
2:49>> So if you wanted to raise a preliminary
2:50objection.
2:53>> Mhm.
2:54>> But the question was asking you do it in
2:56a pleading and you write a pleading. So
2:58now because you can't do that in the
3:00because you can't do that as an
3:02application for any in the format of
3:04notice of preliminary objection.
3:10Now who told you to do it in a pleading?
3:13>> The question the question said draft a
3:15pleading
3:17>> but that is what the question wanted. So
3:19why you talking about the notice of
3:20preliminary objection?
3:22>> That's what I'm that's what I'm coming
3:23at now because now I asked around and
3:26people were saying you you just do it as
3:28a notice of prelim preliminary
3:29objection. Another people are saying you
3:31you file a defense
3:34and then under the defense you write a
3:36paragraph there that you write you you
3:39write a title preliminary objection then
3:41you plead then you continue writing your
3:42defense and then you know
3:45>> who told you that
3:47>> I was consulting
3:49>> stop consulting those people
3:55>> and
3:56so I was confused because I wanted to do
3:59a defense But the next question B said
4:02now do it wanted a defense and counter
4:04claim. That's was the answer. You wanted
4:06a defense and counter claim. So I was
4:08wondering any how are you supposed to go
4:10about it if you want to raise a point of
4:12law but you been told to do it in a
4:14pleading and the defender.
4:15>> Were you told did the question tell you
4:18to raise that point of law in a
4:19pleading?
4:20>> Yes. The question said draft a pleading.
4:23>> But did the question tell you to raise a
4:25preliminary objection in a pleading?
4:28>> Yes. Maybe let me find a question as you
4:30>> is that what the question said that
4:32raise a PO in a pleading
4:35>> not raise a P let me let another person
4:38ask the question so that I can read the
4:39question
4:42>> send me that question
4:43>> it's okay
4:45let me find it okay as the other person
4:47>> all right
4:50okay let's go to somewhere
4:53Sorry.
5:00>> Uh good evening. I shared a question
5:03with you this evening. I don't know
5:05whether you'll project it for the
5:06benefit of the whole class.
5:09>> No. So I can't
5:12>> you know you can't if everybody send me
5:14their past type of question we can't
5:16move.
5:17>> Okay. So
5:19ask a very specific question.
5:22Uh, I think I done
5:32>> Uhhuh.
5:35>> So,
5:40you know, you you're here illegally in
5:42the first place.
5:45>> Uh, okay. I know I'm using a different
5:47name, but uh, payment was done on my
5:49behalf.
5:50I can assertain that
5:53>> you need to leave and go properly.
5:56Sorry.
6:00>> Can we take the next
6:06take the next question from CA?
6:14>> Good evening Jack and colleagues.
6:18Uh my question was around the memorandum
6:22of appeal.
6:24Um
6:26well I happened to look at other samples
6:30and they they look like they had a lot
6:32of things especially at the top.
6:37Um
6:38>> how do you help you?
6:40>> Come again.
6:42>> How do you want us to help you? I wanted
6:44to um understand why the one that we
6:47were preparing did not um capture those
6:52um or rather is there a penalty for
6:55leaving out the the other details cuz I
6:59noticed they were
7:00>> what what detail
7:02>> I noticed there the there were parties
7:06at the I mean after you've done appalent
7:08and respondent
7:10then there were some words in brackets
7:13that are saying that this is an appeal
7:14from the ruling then from the court that
7:17made that and the date then now there's
7:19another topic I mean there's another
7:22title with Republic of Kenya capturing
7:26that yes okay
7:27>> what are what are you what are you
7:29talking about
7:31>> I'm saying you
7:33>> did you get that where did you get that
7:35template
7:40>> from a colleague I cuz we we were
7:43discussing the memorandum of appeal. Now
7:45we could not agree on the on the heading
7:48bit. I talked in class. What did I say?
7:59>> I thought Okay. You told the one that
8:02did not have the previous title.
8:07>> I don't know what you mean by the one
8:09that did not have previous title. What
8:10previous title are we talking about?
8:13>> The title that were being used in the um
8:17in the subordinate courts, the ones that
8:20have plaintiff and defendant.
8:26>> I'm not understanding at all.
8:31>> Then I'll just share the the two
8:33versions. Then I can just um ask you
8:36outside the class.
8:56I'm not I'm not getting your question.
8:59We we we drafted a memorandum of appeal.
9:01Do you have a question on that that we
9:03drafted?
9:06Mhm.
9:11I don't have a question on what we
9:13drafted rather a question on what we did
9:16not include. That's just it.
9:19>> So what we drafted is what you need is
9:21that is all you need. Okay.
9:23>> Yeah.
9:24>> And um let me let me let me say
9:27something so that we clarify that issue.
9:31uh there's different between practice
9:32and when you're in KSI more so when
9:34you're preparing for exams in practice
9:38you will see a lot of things there's so
9:40so many things that you will draft that
9:42are not even relevant
9:44okay they're not relevant for instance
9:45when you drafted a petition normally
9:48you'll see in the petitions from
9:50practice you'll see in the matter of in
9:52the matter of in the matter of in the
9:54matter of we don't need that when you're
9:56doing your exams you don't need to write
9:59to us in the matter of in the matter of
10:01that is not relevant. However, in
10:03practice because people have the leeway
10:06and parties have the leeway to draft
10:08whatever they want to do and that the
10:09courts will not dismiss those um
10:13pleadings for anything. People can
10:15write, you know, you can write anything,
10:17but when it comes to an exam, you want
10:19to focus on the exact the exact issue,
10:22the exact uh the exact format when the
10:25examiner is marking. They want to see
10:27your caption. They want to see the
10:28parties. uh they want to see the title
10:31whether it is a plaint defense uh if it
10:34is an application they want to see that
10:35they want to see your grounds they want
10:38to see your prayers okay and then they
10:41want to see that you have uh that dated
10:44and signed uh generally the jur part of
10:47it so there's nothing else you need
10:49there's nothing else you need so if you
10:51are revising using uh the templates that
10:55have been sent to you by your friends
10:56who are in law firms or you know if you
10:59in a law firm yourself. There's nothing
11:01wrong with those pleadings but they have
11:03so much unnecessary information that you
11:06will not need when it comes to when it
11:08comes to the questions around
11:12uh exams.
11:14Are we together?
11:18>> Yes, we are together. Well guided.
11:38All right. So
11:40any other question?
11:45>> Hello.
11:47>> Yes. Proceed.
11:49So I I found that question that I was
11:51asking earlier. It's April 2024.
11:54Question one B.
11:58>> Okay. So what is the question? What what
12:00is the question asking? Draft what?
12:03>> So the question A is advise the bank. So
12:06it was about a suit a bank something
12:08something and then the suit that was
12:10filed by the plaintiff. It was in the
12:13chief magistrate court but the subject
12:15matter was about 51 million. the loan
12:17was about 10 million or something. So it
12:19was above the chief magistrate courts.
12:21So A was advise the bank on the defects
12:24in the pleading and what should be done
12:26to have the the suit struck out in
12:28lemon. That's five marks. A then B is
12:31why I was asking because now I had
12:33identified what the defects in the
12:35pleading. Now I was asking draft the
12:37appropriate pleading you will file on
12:39behalf of the bank realize the bank's
12:41intention under a above.
12:43>> Yes.
12:46So what's the pleading that you're
12:47supposed is it the defense?
12:50>> All right.
12:52So uh remember uh if you look at that
12:56question very well, you'd realize that
12:59um you are acting for the bank. Uh wait,
13:02are you working for the bank?
13:07>> Yes.
13:07>> Let me see. You're working for the bank.
13:09That is a defendant, right?
13:12>> Yes.
13:13>> Yes. Your client is a bank. So the
13:16question tells you the question tells
13:18you that there is there's a problem.
13:21There are defects in the pleading. For
13:23instance, the pleading is uh is
13:25addressed before the wrong court. Uh it
13:27is before the the magistrate court yet
13:30it's supposed to be uh let's go to
13:35I'm trying to browse through and find
13:36that question.
13:40>> It's question one.
13:54All right. So I think I think okay it's
13:57loading. So so if this matter was filed
14:01before the wrong court then there are
14:04various ways in which you can respond to
14:06a pleading. For instance this is a
14:07pleading and is a plaint. We going to
14:09look at that question anyway. I'm just
14:11summarizing it for you. There are
14:12various ways in which you can respond to
14:14a pleading. Okay. Moso, if you are
14:17responding on a question of law just
14:19only then you raise a notice of
14:21preliminary objection. It is not really
14:24a pleading pleading but a notice of
14:26preliminary objection would be would be
14:29a response enough to a pleading that is
14:32if it is a question of law only such as
14:35jurisdiction lapse of time uh things to
14:39do with judic subdies and all that. So
14:42if you have a I mean a response before
14:44you prepare your defense because
14:46remember if this matter was filed before
14:48the wrong court you cannot file that
14:50defense before that same court. it will
14:52not make sense. So in that instance, you
14:55have to bring a notice of preliminary
14:57objection which is the only document
14:59that is going to be responding to this
15:01pleading. Okay. Now a notice of
15:04preliminary objection responds to all
15:06pleadings but on a question of law. So
15:08sometimes you'll find some examiner uh
15:10some examiners uh calling it pleading
15:13but is not a pleading really. is not
15:15really a pleading in the context of the
15:16pleading that we talked about. But yes,
15:19it is a sufficient response to a
15:21pleading. Are we together? So in that
15:24question, you're not you're not going to
15:25draft an a defense and then you do your
15:30notice of preliminary object within the
15:31defense. No. If you look at that
15:33question
15:35um
15:37that I've opened
15:40trying to project it
15:43anyway without wasting time. So if you
15:45look at that question, the first
15:46question is asking you to advise on the
15:47defects on the defects of the pleading
15:50and then um advise your client advise um
15:57your client that is the bank on the
15:59defects in the pleing and what should be
16:01done to have the suit struck out. Okay.
16:05And then B is a question of draft the
16:08appropriate hearing that you'll file on
16:09behalf of the bank to realize the bank's
16:12intention
16:14and together. Now in that instance
16:16because this is a question of law really
16:18the court doesn't have jurisdiction. The
16:20court doesn't have jurisdiction then you
16:22need to put in a PO. So that PO is what
16:25you draft there. And then you're being
16:28told there that the bank intends to
16:30exercise it right to sue as a secured
16:33creditor under that uh provision. Okay,
16:36draft the relevant draft the relevant
16:39pleadings. Now this is where you come
16:40and draft the substantive pleading. This
16:43is where you come and draft the
16:44substantive pleading. So the substantive
16:47pleading is drafted in C and not in B.
16:49In B you are having the suit struck out
16:52and that is not striking out of
16:53pleadings. that is a notice of
16:55preliminary objection which of course if
16:57it is successful then the court shall
17:00throw away the pleading uh that is the
17:02plaint as filed in that question. We
17:05will come back with that question to to
17:06to revise it from next week. Uh that is
17:12uh some of the questions we'll be
17:14looking at.
17:16So I don't know whether we we are on the
17:18same page.
17:20So, don't do a defense. Don't do a
17:22defense and have a notice of preliminary
17:25objection and defense. Those two can't
17:27go together. You can't have them in the
17:28same document. Okay? Where there's a PU,
17:31there's no defense. Where there's a
17:33defense, there's no POS.
17:38>> Yes. Thank you.
17:41>> Okay. So, I don't know whether we have
17:45another question.
18:01All right. So there's no question. So I
18:03want us to proceed and uh talk about
18:06what we spoke about in the last class
18:08which was supposed to be finishing today
18:10and that is the questions to do with uh
18:13constitution litigation and judicial
18:15review. Okay. Now we went through
18:18constitutional litigation in the last
18:19class. Uh we drafted not only drafted
18:23but yes we went through a petition that
18:27we drafted also in this class in the
18:29last class but we've ded before. So that
18:32was like the third time you're doing it.
18:34And uh in doing so we looked at the
18:36various ways in which you're supposed to
18:38approach a ple uh in the nature of a
18:41petition also if it is a constitutional
18:44litigation. And we say that
18:46constitutional litigation really is
18:48testing on your understanding of the
18:50bill of rights. Okay? It is testing on
18:53your understanding on the bill of
18:55rights.
18:56Are we together? So it is the bill of
18:58rights that uh this question is uh is
19:01testing on the bill of rights that the
19:03question is uh is testing on. Are we
19:07together? Now under the bill of rights
19:10we said that you need to understand the
19:12various articles of the constitution
19:14that are applicable in all
19:16circumstances. Okay you need to
19:18understand the various bill of uh I mean
19:20articles of the constitution that will
19:22be applicable whenever you are defining
19:24defining your foundation the legal
19:26foundation of a petition. Okay. Uh just
19:29to
19:31let's put up a petition very quickly.
20:02So, my screen should be up.
20:18Let me know when you see it.
20:26Yes, we can see it.
20:36Okay.
20:42All right. So, so
20:45just as a summary, uh this is the
20:47petition that we drafted. And of course,
20:49just like I've said in answering that
20:51question that when you start practicing
20:54law, you'll realize that your petition
20:56will not be like this. It will have so
20:59many things. Uh for instance, you'll be
21:01having in the matter of even the entire
21:03page will just have in the matter of
21:05this in the matter that thing is not
21:07relevant whenever you're sitting your
21:09exams. You need to just focus on the key
21:11things which I have highlighted for you
21:13in this simple petition. Now the
21:15Republic of Kenya which is a caption
21:17capturing all the way up to parties the
21:19name and description of parties
21:22the legal foundation of your petition.
21:24Now this is where we said that under the
21:25legal foundation whenever you're
21:27drafting your petition you need to
21:28understand that there are two aspects.
21:31The first one the legal foundation of
21:33the petition must of course come from
21:35the constitution. It means the relevant
21:38sections of the constitution that you'll
21:40be relying on. Okay. Now I said that
21:42those that have highlighted in green
21:44these are the standard ones. They will
21:46appear in all petitions. All
21:49constitutional petitions that you
21:50prepare you shall have article 10, 19,
21:5322 and 23 in as far as uh that petition
21:57is concerned. Are we together? And then
22:00the ones that are highlighted in blue
22:03these are now specific to the scenario.
22:06Okay. For instance, if your client was
22:08discriminated against, that is when
22:10you'll start bringing article 27 of the
22:13constitution. So, some articles are
22:16specific and some are general. Okay? As
22:19you do realize that when you start from
22:21article 25 all the way from article 19
22:25all the way to 25, those are general
22:27provisions.
22:28Okay? Let me say it like that. So from
22:31article 19 all the way to 24 they had
22:35general provision. It means they apply
22:37to all petitions and then from article
22:4125 that is when now we start getting
22:43specific rights and freedoms. For
22:45instance uh article 25 talks about the
22:48rights that are not um are not cannot be
22:51limited. Okay. Article 26 now talk about
22:53the right to life 27 discrimination and
22:56all that. So if you are preparing your
23:00legal foundation of the petition then it
23:02means you are going to start quoting
23:04article 19 of course 10 is very
23:06fundamental because 10 now contains
23:08national values of principal governance
23:10and one of them is the question of
23:12protection of human rights and then from
23:1519 20 21 22 23 and 24 those are general
23:22articles of the constitution that shall
23:24apply in all petitions. Are you
23:26together? So that is the legal
23:28foundation. In terms of the legal
23:29foundation, you just need to tell us
23:30what articles of the constitution
23:33or what provision of law are you going
23:36to be relying on. Okay? Are you going to
23:38be relying on? And of course we have
23:41article 10, 19, 22, 23. Those are
23:45general provisions. And then article 31
23:48all the way down which are specific. Now
23:52after that then sometimes an examiner
23:54will tell you this that you are relying
23:57on certain provisional sorry certain
23:59title provisions. So in a question the
24:02examiner can tell you that the
24:04petitioner is also alleging that there
24:06was a violation of a specific a specific
24:09section of law. For instance if it is a
24:11question to do with land. If it is a
24:13question to do with the land then you
24:16might find that the petitioner is
24:18relying on article sorry section 27 of
24:21the land of the land registration act.
24:24Okay. So that is the question to do with
24:26the rights of registration uh and um the
24:29certificate of title or certificate of
24:32lease. So in that respect you might also
24:35make reference to make reference to
24:37article uh to article sorry to sections
24:40of the statute and sometimes you might
24:44also have the provisions of
24:46international law you might also have
24:48provisions of international law. Now
24:50when it comes to the provisions of
24:51international law and it comes to the
24:53provision of the specific stat statutes
24:56then the examiner shall provide those.
24:58we shall look at some of the questions
25:00where the examiner has referenced
25:03specific uh specific um sections of the
25:07statute. So I'm not saying you start
25:09looking if you know well and good but if
25:11you don't don't worry about the relevant
25:14stat provisions and the relevant
25:15provisions of international law unless
25:17it has been provided or unless you know
25:20it offered. If you know the relevant
25:21provisions of the UDHR that's universal
25:25declaration of um human rights you can
25:28quote it there if you know that anyway
25:31so I hope you understand what legal
25:34foundation of a petition is supposed to
25:36look like and then from there we simply
25:38go to the brief facts the summary of the
25:40facts the factual context of that
25:43petition what really happened after that
25:45then we narrow down to now the
25:47particulars of violation so it means
25:49after the brief facts and marrying the
25:52brief facts and the legal foundation,
25:55what do you think are the violations?
25:58Okay, how was the petitioner's right
26:02violated? Okay, how was that right
26:04violated? So, you could have an instance
26:07where there's several violations.
26:09There's violation of the right to
26:10privacy. There could have been violation
26:12of uh freedom of expression. There could
26:15be violation of the right to education.
26:16there could be violation of article 47
26:19that is the right to fair administrative
26:21action. Now in that regard what are we
26:24saying? We are saying that you
26:26particularize this violation by
26:29indicating that by the respondent doing
26:32this he or she or it violated the
26:36petitioner's right to privacy for
26:38instance and then after all that you
26:41simply come to the reliefs that you're
26:42seeking. Now the reliefs that you're
26:44seeking like we said in the last class
26:46are already provided for in in the
26:49constitution they are under article 233
26:52and there are so many so from
26:54declaration of declaration of right
26:57questions of with compensation damages
26:59injunctions conservatory orders
27:02declaration of invalidity of law
27:04judicial review are we together? So
27:06those were those who were the reliefs
27:08that you're seeking and then of course
27:10after that it is dated it is signed
27:12drawn and filed by it will be served
27:14upon and then you prepare your
27:16supporting affidavit. This was the
27:17petition that we have looked at so many
27:19times in this class and I am confident
27:22I'm not very sure but I hope that we are
27:26understanding what is going on. Okay I
27:29hope that we are understanding what is
27:31going on. Now is there somebody having a
27:34question in as far as the petition is
27:37concerned because I want to introduce
27:38another concept and then we proceed to
27:40something else.
28:02All right.
28:06Yeah. Good evening, council. Uh
28:09yes. Um
28:13uh
28:15I was looking at it and I was again
28:17looking at the
28:19it's the approach over the same with the
28:22constitution and so my question was
28:24under under the petition are we supposed
28:27to quote
28:29any any particular order any particular
28:32>> you said you're looking you're looking
28:34at it and looking at what again
28:36>> I was revising this this particular
28:38section the view in civil and the review
28:41in criminal.
28:43And so the question was,
28:45>> wait,
28:48are you in this class? What is review in
28:51criminal and review in civil?
28:52>> Judicial review uh both in civil and
28:56uh
28:56>> there's there's there's there's nothing
28:57like that. There's only one judicial
28:59review. There's nothing like judicial
29:00review in criminal or judicial review in
29:01civil. There's just one judicial review.
29:03There's not two.
29:05>> Okay.
29:07>> Mhm. Nonetheless. Uh-huh.
29:08>> So, so under petition under petition
29:11before you go to name and description of
29:13parties are we supposed to like uh quote
29:17any particular order any particular like
29:20order order 53
29:22or whatever
29:24>> why quoting order 53
29:25>> I just wanted to understand because in
29:27all other planes we've been quoting a
29:30particular order
29:33>> what order did you quote in the plane
29:37depending depending on the on the notice
29:40of motion whatever it is
29:42>> is a notice of motion is a notice of
29:44motion the same as a petition
29:48>> not not not really but yes it's our form
29:50of approach to
29:52to the court
29:54>> I'm assigning a question
29:57>> so are we are we quoting anything under
29:59under petition or you just leave it and
30:00then go
30:01>> give me give me give me four types of
30:03pleadings that we've discussed in this
30:04class we've drafted more more than four
30:06but give me for pleadings.
30:10>> We have a a petition.
30:13>> Okay.
30:14>> We have the Yeah.
30:16>> Mhm.
30:18>> We have the notice of motion.
30:20>> Where
30:23we take some water and then you can ask
30:25the question again.
30:26>> Okay.
30:27>> Drink some water and then you can come
30:28back.
30:30Okay. So guys, I want us to take it that
30:34there's no question on petitions.
30:37I'm taking it that there are no
30:39questions on petitions and um I want us
30:42to introduce judicial review uh
30:44specifically uh while that plane is
30:47still on so that we understand something
30:49I did introduce judicial review in the
30:51last class and it is important that I
30:53introduce it again so that if you didn't
30:56understand it then you understand it now
31:00are we together now when it comes to
31:03judicial review judicial review is a
31:05remedy
31:08The first thing I say in every class
31:10when it comes to judicial review is that
31:12judicial review is a remedy.
31:16Okay? It is a remedy.
31:20It is not a document.
31:23You cannot draft judicial review. Let me
31:25say that. Okay? And I want you to
31:28understand this very well that judicial
31:30review or JR as you call it is not a
31:33document. There's no document called
31:35judicial review. Guys, are we together
31:37until that point? There is no document
31:39called judicial review.
31:42Okay, I want you to understand that
31:44because that is where people get it
31:46confused. People get it confused at that
31:49specific point. Judicial review is not a
31:52specific document. There's no document
31:53you can go and take and say now I have
31:56judicial review in my hand. No, what you
31:58have is a pleading for judicial review.
32:01that is a petition for judicial review
32:03or an application for judicial review.
32:07Okay. Now, what then is judicial review?
32:10Now, judicial review is a remedy. Okay.
32:13And I'm bringing up the constitution
32:14right now.
32:16I'm bringing up the constitution right
32:18up in a few seconds.
32:24I don't know why my screen is like that.
32:42Just give me one second.
32:54Okay, I hope it can be seen now. So
32:56let's go back to the constitution.
32:59So what then is judicial review? Let's
33:01come back to article 2 three. Article 23
33:05uh there. Okay. Now you can see you can
33:08see here under article 23 uh sub article
33:123 it says that in any proceedings
33:14brought under article 22 of the
33:16constitution a court may grant
33:19appropriate relief including so what are
33:22the reliefs that you can grant when you
33:24approach the high court uh for the
33:26violation or denial or infringement of a
33:30constitutional right or a fundamental
33:31freedom. Those remedies are a
33:35declaration of right, injunction,
33:37conservatory order, declaration of
33:39invalidity of law, an order of
33:41compensation, and lastly an order for
33:44judicial review. An order of judicial
33:46review. So judicial review is one of the
33:48remedies you can get is a is a remedy.
33:52It is just like the question of specific
33:55performance
33:56that is also a remedy. So in a question
33:59where there's a contract and a contract
34:02has been violated, you can pray for
34:05several remedies. For instance, you can
34:06pray for you can resent the contract.
34:09Okay? You can pray for damages for
34:12breach of contract. You can also pray
34:14for restitution. You can also pray for
34:17specific performance.
34:20Okay? It means specific performance is
34:22the remedy. So if somebody is asking you
34:26when do you pray for specific
34:27performance the answer is very simple
34:30when you are seeking okay when you are
34:33seeking
34:35what or when you are claiming that a
34:38contract has been violated the same
34:41question I'm going to ask you there what
34:43is judicial review judicial review is
34:46remedy okay now when do you seek
34:48judicial review you seek judicial review
34:51when there has been a violation one of
34:54article 47 and also the rules of natural
34:58justice.
35:00So judicial review is not a document. It
35:02is not a document. You can see that hey
35:04I have judicial review in my hand. No
35:05judicial review is not a document. That
35:08is the first thing. It is a remedy and
35:10it is a remedy the same as injunction
35:12the same class as conservatory order and
35:14all that. Number two, the second thing
35:17you need to understand is that judicial
35:19review is a power that is given or a
35:22relief that can only be exercised by the
35:24high court. It is only the high court
35:26that has the power to do what? To issue
35:29orders of judicial review. Okay? The
35:32high court alone,
35:35it has the original jurisdiction to
35:38entertain questions of judicial review.
35:41Okay? That is number two. Number three
35:44or the third rule of judicial review is
35:46that judicial review orders are not
35:48available against court orders. What is
35:50that supposed to mean? It means when you
35:53are going to court to challenge an order
35:56or when you are going to court to seek
35:59an order of judicial review then you
36:02cannot get judicial review orders
36:04against a court order. That needs to be
36:07very clear. Now, judicial review is only
36:11available against the what we call the
36:14administrative decisions. It is only
36:16available against administrative
36:19decisions.
36:21Are you together? It is only available
36:23against administrative decisions. Now,
36:26court orders are not administrative
36:28decisions. Court orders are judicial
36:32decisions. So, judicial decisions cannot
36:35be challenged through judicial review.
36:38Are we together?
36:40Now that therefore means that if a court
36:43of law that is the magistrate court or
36:45the high court has made a decision, you
36:47cannot go to the high court to challenge
36:49a decision of the magistrate through
36:51judicial review. That cannot happen.
36:55Are we together? Number two, you cannot
36:58go
37:00to the magistrate court to seek orders
37:02of judicial review. There is only the
37:04high court and that order is only
37:07available by the high court in its
37:09supervisory jurisdiction to supervise
37:12number one the quasai judicial
37:15authorities and also the administrative
37:19bodies.
37:22Now somebody is asking who is an
37:24administrative body? An administrative
37:26body is any body that is not a natural
37:29person. Very simple. It means any
37:32decisions of a person that is not a
37:35natural person is eligible to be
37:38challenged through judicial review. For
37:41instance, if you walk into a hospital
37:44today,
37:46okay, whichever hospital you can think
37:49of and you find a doctor there and that
37:51doctor says, "Hey, I am not going to
37:54treat you. I cannot treat people from
37:57this specific community."
38:00Okay, that is a decision that can be
38:04challenged in court. That decision has
38:07violated your right.
38:10Okay, but that decision is not an
38:13administrative decision. It is a
38:15personal decision. So you can sue that
38:18doctor for violating your rights but not
38:21through judicial review because judicial
38:23review is only available against
38:26decisions that are taken by
38:29administrative bodies. And I have said
38:31that the simplest definition of an
38:34administrative body is anything that is
38:36not a natural person. So think about it.
38:40Could be a company, could be a
38:42partnership, could be a government,
38:44could be a church, could be a circle, a
38:46society, whatever. So long as it is a
38:49decision that is taken up by a body. The
38:52second example is if you walk into the
38:55same hospital again. Okay, if you walk
38:57into the same hospital and then you see
38:59somewhere on the notice board that the
39:01hospital has taken a stand. The hospital
39:04has published a memo or a notice saying
39:08that from today henceforth we shall not
39:10be treating people from this community.
39:12Then that becomes an administrative
39:14decision because it has been taken by
39:17the hospital as an institution
39:20and therefore that decision can be
39:22challenged through judicial review.
39:25Are we together? So that is also very
39:27very important. You need to understand
39:29the distinction.
39:31So judicial review is the decision sorry
39:34it's the the power of the court that is
39:36the high court to review decisions of
39:41administrative bodies against what
39:43length against the lenses of article 47
39:47and the rules of natural justice that
39:49some point are created under article 50.
39:53Okay
39:55fairly simple like that. So that is
39:57judicial review. It is not available
40:00against against a court. You cannot sue
40:02the court. You cannot sue the court or
40:04challenge a court order. If if you have
40:06a court order that you're not happy
40:07about, you can appeal. If you can't
40:10appeal, you can make an application for
40:12for review.
40:14But you cannot you cannot and that is
40:17this is review under order 45 not
40:19judicial review. Are we together? That
40:22is clear.
40:24Now after understanding that I want us
40:27to go back and talk just slightly about
40:31uh the rate of uh the rate of uh
40:33judicial review and the history of
40:35judicial review which we said in the
40:36last class and we said that in 1803
40:39[clears throat]
40:40uh we has a we had a case called
40:42Marabari versus uh Madison.
40:47Okay, versus Madison was the first
40:50initial case that dealt with the
40:52question of the power of the court
40:56to issue judicial review orders. Okay,
40:59this was the power that specific court
41:01which is sorry that specific decision
41:041803
41:05uh which is one of the locust class
41:07cases in terms of judicial review. The
41:10court said that judiciary
41:13will have the power or has the power to
41:16review decisions of governments or
41:20decisions of government institutions.
41:22That is how it started that the court
41:24had the power to review decisions of
41:28public bodies if they act contrary to
41:32the provisions of provisions of law. Are
41:35we together? So that was the origin of
41:38judicial review. Now after that judicial
41:41review has developed uh and has devolved
41:43over time and um once that development
41:47is that we move from just public bodies
41:49to now private bodies. Okay. Now you
41:52remember the case of Republic versus
41:54Cabarak University where the high court
41:56stated I think that is 2016 the high
41:58court stated that yes long time ago you
42:02could get you could only get judicial
42:04review orders against public bodies but
42:07now with the coming of the 2010
42:08constitution you are supposed to get
42:12judicial review orders against public
42:14bodies and also private institutions.
42:17Are we together now? How did judicial
42:19review become judicial review that we
42:21know right now in our constitution and
42:23in our order 53. Now this was a common
42:27law principle. Okay, this was a common
42:30law principle. Now this common law
42:33principle was codified into the Kenyan
42:35law subject to section 89 of the law
42:38reform act. Now section 8 and n of the
42:40law reform act is the same section that
42:43recognized for the very first time the
42:45question of judicial review the remedy
42:47of judicial review and it said that
42:50there are three remedies there are three
42:52remedies to judicial review. The first
42:55remedy is the remedy of the first remedy
42:59is the remedy of mandamas and mandamas
43:02is to compel somebody to do something.
43:06Number two is saturary which is to quash
43:10the decision of a body. And then we have
43:13prohibition which is to prohibit and to
43:16restrain that specific body from going
43:19on with doing whatever they whatever
43:21they were doing. [clears throat] Are we
43:23together? Now those were the three
43:25orders of judicial review as codified
43:28under section 89 of the law reform act.
43:31Okay. Now remember that section 89 of
43:33the law reform act is a substantive
43:35section.
43:37So it needed a procedure.
43:40Okay? Like you've seen that the
43:42constitution is a substantive law.
43:46It simply says that if you your right is
43:48violated, you need to go to court. But
43:51now how do you go to court? Then that
43:53comes in the procedure. For instance,
43:56again the land act is a substantive act
44:00or law and therefore it needs a
44:03procedure and that procedure is the land
44:06registration act which is now the
44:08procedural bit of it. So you remember
44:11that we have substantive acts of
44:13parliament and then we have the
44:15subsidiary legislation that now
44:17operationalizes these provisions the
44:20same way. Now the law reform act under
44:22section 89 provided that yes you can get
44:24orders of judicial review but then it
44:27did not provide for how and then for
44:30that reason the parliament inserted
44:32inserted order 53 in the civil procedure
44:35rules so that that order could give you
44:38the procedure you need to follow when
44:40getting orders of judicial review. Okay.
44:43Now because at that moment when order 53
44:47was being enacted that is in 2010
44:50it was unheard of. It was unheard of
44:53that you could go to court and get
44:56orders of judicial review. Okay. And
44:59common law provided as well that yes,
45:02you could go to court and get orders of
45:03judicial review, but because largely
45:05these were orders that were issued
45:07against the government, then you needed
45:09to have seek to have sought leave
45:12and that is why order 53 now introduced
45:15two tier systems or two-tier processes
45:18of getting judicial review. The first
45:20one was you need to seek leave first.
45:22The sub I mean the leave stage. you go
45:25to court and ask the court for leave to
45:28institute judicial review judicial
45:31review um proceedings and then once you
45:35get the leave then order 53 provided
45:38that you can now file your substantive
45:40pleading or the substantive document. So
45:43there are two
45:46um stages under order 53 and that was
45:49purely common law the leave stage and
45:52the substantive stage. Are we together
45:55up to that point?
46:06>> Yes, we are.
46:09>> All right.
46:11Now, Susan, what is it?
46:16So this was a question of what you said
46:19about judicial review earlier about not
46:21applying for judicial review does not
46:23apply to court order. So I wanted to
46:25seek a clarification while we were doing
46:27trial advocacy and we are going through
46:29judicial review. We came across cases
46:31where let's say we also used a case
46:35where in in criminal in criminal
46:36litigation where the DPP had charged a
46:40person and then
46:42had charged the person then the matter
46:44had already been taken in the emergency
46:46court the person had already taken plea.
46:48So the person any took judicial review
46:52proceedings in a in the high court and
46:54then charged uh not charged the the
46:57respondents in that suit were the DPP
47:00for charging him and the chief
47:02magistrate court of that chief
47:04magistrate of that court and then when
47:08the the orders the final orders of that
47:10court said that they said that at the
47:13end they found that the DPP something
47:16they they said that the person should
47:18not be charged and the the proceedings
47:21going on in the magistrate court will be
47:23quashed. So there was a any there was a
47:26thing I didn't understand any what how
47:28how do we decide this is not a court
47:30order because these these are judicial
47:32any the what the magistrate is doing is
47:35a judicial order
47:38>> yes
47:38>> was there a court order there
47:41>> no that's the but the mag
47:44>> answer the question was there court
47:46order
47:47>> no no there was no court order but it
47:49was acting in it judicial function
47:52>> but there was no order. That is what you
47:55need to understand. There was no order
47:56there and then I'm going to explain that
47:57why why that is uh why that is um like
48:02that. Now when it comes to criminal when
48:04it comes to criminal decisions that you
48:08can decisions that you can challenge
48:10using judicial review remember that I've
48:12said judicial review is not criminal is
48:14not civil is just a remedy it is never
48:17criminal nor civil it is just there is a
48:19remedy and therefore in criminal this
48:22decision
48:24of criminal institutions can be
48:26challenged through judicial review and
48:28this institution like I said in criminal
48:30class is we have the DPP
48:32We have the DCI. We have the IGO police.
48:36We have the Ministry of Defense or the
48:38Department of Defense. We have the ESC.
48:41We have the NCIC or NCIC,
48:44the National Coalition Inter and
48:46Integration Commission. Now, those are
48:48the critical
48:50administrative decisions that make
48:53decisions that have uh some criminal
48:56sanctions with them. Okay. Now
49:00normally when you file judicial review
49:02proceedings in criminal you are
49:04challenging
49:06okay you are challenging what are you
49:09challenging you're challenging the
49:10decision of who anytime you go to court
49:14for an order of judicial review you are
49:17challenging a decision because remember
49:20that judicial review is anchored under
49:22article 47 and you are simply
49:24demonstrating that this decision
49:28Okay, this decision is violating my
49:31right under article 47 and that is the
49:33right to do with uh the fair
49:37administrative action. Now in criminal
49:40that decision is usually one there's
49:43only one decisions in criminal that you
49:45can challenge through judicial review
49:47and that decision is the decision to
49:49charge.
49:51Okay, the reason to charge sometimes is
49:53made you know by all these in but the
49:56main culprit is the DPP. Now it depends
50:00now if this matter the DPP has made a
50:02decision that they're going to charge
50:03you. Okay, maybe you've seen it in the
50:06newspaper or they have sent you a
50:08letter. You can run to court through
50:09judicial before you are arraigned in
50:11court and charge. You can run to the
50:13high court and seek judicial review
50:16orders against the decision of the DBP
50:18to charge you. Now in that instance who
50:20are the parties? The parties are number
50:23one and the only person is the DPP.
50:27Okay. And what are you asking? You are
50:29challenging the decision of the DPP to
50:31charge you. Are we together? Now if this
50:35matter has already been presented before
50:37the court, if this matter is already
50:40presented before the court, then it
50:43means when you go to the high court, the
50:45first person you are going to be suing
50:48is and the only person you're suing is
50:50the DPP. However, because this file is
50:54already before the court and the court
50:56is already, you know, maybe the court
50:57has already told you to take a plea, uh
50:59the court has given a date for hearing
51:02or the date for betrial and all that.
51:05Okay? If you are successful, if you are
51:08successful in that judicial review
51:10against the DPP, then the court will
51:13issue an order directing the court that
51:17is the high court will issue an order
51:19directing the magistrate
51:22Okay. Directing the magistrate that is
51:25entertaining that proceeding.
51:27The magistrate that the magistrate court
51:29that gave a date for hearing of that the
51:32court will issue an order telling that
51:34magistrate that hey this decision has
51:36been quashed. So please remove that
51:38file. Quot that file.
51:42Okay. So the magistrate in this sense
51:45you're not suing the magistrate. You're
51:47simply getting an order directing the
51:49magistrate to do what? to remove the
51:52file to stop proceedings in that file.
51:55Why? Because the DPP's decision to
51:58charge has been quashed. So in the sense
52:02of it, you are not suing the court.
52:04However, you can decide to have the
52:05court as a party. And of course, you've
52:07seen uh decisions or jurial review
52:10applications where sorry judicial review
52:13judgments uh cases that are termed as
52:16republic versus the chief magistrate
52:19kibbra.
52:20Okay. So in that it doesn't mean you're
52:22suing the chief magistrate. It means
52:24that there's an order being issued
52:26directing the chief magistrate to do
52:29something that is an order of mandamas.
52:31However, the order that is being
52:34quashed, the order that is being
52:36challenged is the decision that is
52:40before that court and that decision is
52:42the decision to charge.
52:45So, I hope you are getting what I'm
52:47saying.
52:50>> Yes.
52:52>> So, we are not suing the magistrate.
52:55However, the reason why magistrate is
52:57there and sometimes again you don't have
52:59to have the name of the magistrate
53:00there. You can simply sue the DPP. Once
53:03you sue the DPP, then that order that
53:05you get, you will serve it upon the
53:07magistrate and the magistrate will do
53:09what? The magistrate will stop the
53:11proceedings and will close that file
53:14because the decision to charge has been
53:17quashed. So that is the reason why we
53:20have the magistrate sometimes appearing
53:22as a party in uh judicial review
53:24applications in the criminal courts or
53:27in a criminal in a criminal trial.
53:32Now I hope that is uh
53:35clear to every person. Now let us go
53:38back to what I was mentioning and I was
53:40saying that as per the order 53 the way
53:45that you seek judicial review remedies
53:47is through number one leave stage and
53:50then the substantive stage. Are we
53:53together? The substantive stage. Now the
53:56substantive stage is where you file your
53:58you file a notion and we shall look at
54:00it uh shortly.
54:02Now what then happened what then
54:05happened after 2010. Now after 2010
54:09article 47 was inserted and I want us to
54:13understand the context of article 47 and
54:15also the rules of natural justice and
54:17then we can talk about uh the
54:19development around the same article
54:22right there. Now, judicial review is all
54:25about administrative action. Okay?
54:29Administrative what? Administrative
54:31action. Judicial review is all about
54:34administrative administrative action.
54:36Okay? And it demands that every person
54:39should have a fair
54:42okay every person should have a fair
54:45administrative action. Now
54:49what also are the rights of I'm sorry
54:51what are the rules of natural justice?
54:53Now remember I've said that judicial
54:55review is coming from the rules of
54:57natural justice. Okay and what are those
54:59rules of natural justice? Now the rules
55:01of natural justice for instance the one
55:02that we all know that before you condemn
55:05someone you must give them a hearing.
55:07Before you condemn somebody you must
55:09give them a hearing. That is one
55:11fundamental rule of natural justice that
55:14before you beat someone,
55:17ask them what happened.
55:19Okay? Before you throw somebody to jail,
55:22ask them what happened. Before you, if
55:24you're an employer, before you fire
55:26somebody, ask them what what happened.
55:29Are we together? That is a rule of
55:31natural justice. Now when it comes to
55:33article 47, it simply says that because
55:35that is the whole foundation of judicial
55:37review that every person has the right
55:40to administrative action that is
55:42expeditious, efficient, lawful,
55:45reasonable and procedurally procedurally
55:48fair. Okay. Number two, if a right or
55:51fundamental freedom of a person has been
55:54or is likely to be adversely affected by
55:56an administrative action, that person
55:59has the right to be given written
56:01reasons for that for the action. It
56:03means therefore anytime a decision is
56:06being made, there are certain things
56:08that there are certain prerequisites,
56:10the certain preconditions that must be
56:12met when a decision is being made.
56:14Number one, the person that is being
56:17affected by that decision must have been
56:19served with a notice. They must have
56:22been given a notice. So we are talking
56:24about the procedural fairness. They must
56:27have been given a notice.
56:30Okay, notice
56:33remember notice.
56:36Number two, they must they must have
56:38been given an opportunity to be heard.
56:42So for instance, if you're firing
56:44somebody, you must give them a notice
56:46maybe through the disciplinary hearing
56:48and then you must give them an
56:49opportunity to be heard and to make
56:52their case. Number three,
56:56you must give them reasons.
56:59You must give them reasons making up
57:02that decision. Okay? For instance, if
57:05they being fired, after you give them
57:07notice and you give them the opportunity
57:09to be heard and then you make a decision
57:12to fire them, you must tell them the
57:14reasons why they have been fired. Why
57:16have they been fired?
57:20Are we together? And then lastly is the
57:24right of appeal. That once you make that
57:26decision, you must inform this person
57:28that they have a right to appeal.
57:31Okay, they have a right to appeal. So we
57:34are going to look at questions in the
57:35past papers where you can clearly see
57:37that somebody
57:40a decision was made affecting someone.
57:44Okay, that person was not given notice.
57:47He was not given reasons why they were
57:48being fired. He was not even given a
57:51right of appeal, you know, or even the
57:54opportunity to be heard. Now in that
57:56instance, when you see that happening,
57:58that already tells you it is article 47.
58:02It is a question of judicial review.
58:05The moment a decision has been made and
58:07that decision is lacking in the four
58:08aspects then that is judicial review.
58:11Now judicial review arises in that four
58:13instance. The first one I've said there
58:14must be notice of that decision. Number
58:17two there must be opportunity to be
58:19heard. Number three there must be
58:21reasons for that decision. And number
58:24four there must be the questions of
58:26appeal. You have to give this person an
58:28opportunity to appeal. And you have to
58:30tell them how do they appeal.
58:34Okay? You have to tell them how do they
58:37appeal.
58:42Are we together? Now if you look at that
58:45and you see that the four instance all
58:47the four things are missing. You could
58:49have g somebody could have been given
58:51notice but they're not given opportunity
58:52to be heard. So all the four then that
58:55is a very unfair administrative action.
59:01Administrative action is just a decision
59:03of an institution and an institution in
59:06this context is any public or private
59:09body so long as it is not a natural
59:11person then that is an an administrative
59:15decision. It can be taken by one person
59:18representing the institution. For
59:19instance, the CEO the CEO of a company
59:23can take an administrative decision on
59:25behalf of the company.
59:28Okay. So I hope you understand the
59:30context of judicial review where
59:31judicial review comes in. Now at the
59:34inception of the 2010 constitution and
59:37the period that followed up to 2013,
59:41the article 47 which is the judicial
59:44review article was placed at the center
59:46of the bill of rights. And then after
59:50putting article 47 where it is now, then
59:53there was article 22. And then article
59:5622 now said that if you claim that your
1:00:00right or fundamental freedom under the
1:00:02constitution and that right remember
1:00:04includes the right to fair
1:00:06administrative action under article 47
1:00:09then you shall have the right to go to
1:00:12the high court and
1:00:14claim remedy. Okay that is very clear.
1:00:19Now in going to court how do you go to
1:00:22court? You go to court through a
1:00:24petition
1:00:26that is as per the muna rules. You go to
1:00:28court through a petition and in that
1:00:30petition you shall be asking the
1:00:32remedies that are listed under article
1:00:35under article 22. Okay. The remedies
1:00:38that are listed under article 22 and
1:00:40those includes the remedies of judicial
1:00:43review article 23. Are we together? So
1:00:46it means that after the
1:00:48operationalization of the 201
1:00:50constitution, we now have a second way
1:00:53of getting a remedy of judicial review
1:00:55and that way is you prepare a petition
1:00:59and then in that petition you allege
1:01:01that article 47 has been violated and
1:01:04then you pray for orders of judicial
1:01:08review in your remedies.
1:01:11Are we together? Now that gave us two
1:01:13ways of approaching the court through
1:01:16orders of judicial review or for orders
1:01:18of judicial review sorry. The first one
1:01:20is the old traditional way and then the
1:01:22second one is now the uh
1:01:26petition under the constitution or a
1:01:29constitutional petition. Are we
1:01:31together? Now what is the distinction
1:01:34and what when do you take what? Now the
1:01:36first one uh and this is the basic one
1:01:39is that a petition you will know you are
1:01:42supposed to draft a petition you will
1:01:44know you're supposed to draft a petition
1:01:46if the question tells you that proceed
1:01:50and proceed and prepare a pleading. So
1:01:53petition is a pleading but if the
1:01:55question says prepare the application
1:01:57then that is application for judicial
1:01:59review.
1:02:01Okay. So petition pleading
1:02:05application and application for judicial
1:02:08review. Number two, you could get
1:02:10instance where you're being told to
1:02:12proceed and seek leave just like the
1:02:14question we saw and we're going to see
1:02:15it in 2022 where the question was saying
1:02:19prepare the leave documents.
1:02:22Prepare the leave documents.
1:02:25And then lastly, you could also be told
1:02:27that leave has already been sought. Now,
1:02:29if you're told to prepare the leave
1:02:30documents, you're not going to prepare
1:02:32petition. You're just going to prepare
1:02:34the the chamber summon application under
1:02:36certificate of agency, the statment and
1:02:38the verifying affidavit.
1:02:41Are we together? And then if you are
1:02:44told, if the examiner tells you that
1:02:46leave has already been sought, leave has
1:02:49already been granted, proceed and
1:02:51proceed and um you know prepare the
1:02:54substantive documents. Then in that
1:02:56instance you are preparing the notice of
1:02:58motion because leave has already been
1:03:01sorted because I've said that in the in
1:03:03the old way we are using the leave stage
1:03:07and then the substantive stage. So if
1:03:10you're told that prepare an application
1:03:12for judicial review you prepare all of
1:03:14them. But if you're told to prepare the
1:03:17leave documents you prepare up to up to
1:03:19the leave documents. Okay the four
1:03:22documents. And then if you're told to
1:03:24prepare the substantive document then
1:03:26you prepare just the five sorry the
1:03:28fifth the fifth document which is the
1:03:30notice of motion.
1:03:33Are we together? Number two or number
1:03:35three is that if you read that question
1:03:39and you realize that there's been a
1:03:41violation of other rights in the
1:03:44constitution that is not just article 47
1:03:47then you shall proceed and prepare a
1:03:49petition. Remember that an application
1:03:52for judicial review is only for judicial
1:03:54review is only for article 47. It means
1:03:57if you're seeing in that question that
1:03:59this person's right to employment has
1:04:01been terminated, this person's has been
1:04:03has been discriminated against, this
1:04:05person has been his privacy has been
1:04:08affected. Now in that instance
1:04:12even though there are remedies of
1:04:14judicial review you'll be praying for
1:04:16judicial review but at the same time
1:04:18you'll be praying for other things. Now
1:04:20in that instance you cannot do it
1:04:22through judicial review application that
1:04:24cannot be done in the petition and again
1:04:27we shall look at that question. We shall
1:04:28look at that question where you're being
1:04:30told that your client is claiming that
1:04:32their right under article 47 their right
1:04:34under article 27 and their right under
1:04:36article 50 has been violated. Now in
1:04:39that instance yes the moment you see
1:04:41article 47 it means there is an order of
1:04:44judicial review that you'll be praying
1:04:46for as you make your prayers but also
1:04:48because this person has their rights
1:04:51violated that is not just article 47 you
1:04:53shall prepare a petition because when
1:04:55you go through a petition you are going
1:04:57to be praying for more things than if
1:05:00you go through an order of judicial I'm
1:05:02sorry an application for judicial review
1:05:03because remember when it come to an
1:05:05application for judicial review there
1:05:07are only three prayers you can seek.
1:05:10Okay, that is the questions to do with
1:05:13the question to do with madamas saturary
1:05:15and prohibition. Guys, are we
1:05:18understanding what I'm saying? I know
1:05:20I'm too fast.
1:05:24>> Yes, we are.
1:05:28>> Okay.
1:05:30Okay. All right. I will take questions.
1:05:35You you are too fast to cancel.
1:05:38>> Ask a question.
1:05:44>> The final part you've said there are
1:05:46only three prayers and I've picked it's
1:05:49the three orders sataras and petition
1:05:54>> and so
1:05:56>> come on
1:05:57>> under judicial review.
1:05:59I'm just recapturing what you were
1:06:01finishing as I was speaking some notes
1:06:03on the either petition application or
1:06:05leave of court.
1:06:07>> We believe is granted. You've said we do
1:06:09a notice of motion in the prayers for
1:06:13judicial review. That's why you say we
1:06:15have we only have three
1:06:19which are picked under the fair
1:06:21administrative action and under article
1:06:2423. Yeah. So I feel that Mhm.
1:06:30>> Sorry.
1:06:31>> What? I'm trying to I'm trying to get
1:06:34get your question or get what you're
1:06:36trying to summarize. So are you
1:06:37summarizing the orders of judicial
1:06:39review or cuz I've said if you go
1:06:42through the petition then you can pray
1:06:44for everything that is listed under
1:06:46article 233
1:06:48from
1:06:49>> okay
1:06:50>> declaration of right compensation
1:06:53injunctions
1:06:55um conservatory orders declaration of
1:06:58invalidity of law and judicial review.
1:07:01Okay, are we together? For instance, let
1:07:04me just go back and show you there so
1:07:06that you see what I'm what I mean.
1:07:08>> Uh let's go back to that petition of
1:07:10ours
1:07:15there. I'm hoping that uh
1:07:23All right. So, I'm hoping that I have
1:07:25prayers. Yes. Now in this petition you
1:07:27can see that our first prayer is that a
1:07:30declaration be issued that the
1:07:32respondent violated the petitioner's
1:07:35right to privacy. Number two we have
1:07:37prayed for an order of compensation.
1:07:41However number three we have prayed for
1:07:44a judicial review order of prohibition.
1:07:47So you see we have mixed judicial review
1:07:49orders with other orders or other
1:07:52prayers that can only happen in a
1:07:54petition. However, were we to go through
1:07:57the judicial review application then
1:07:59there are only three prayers that we can
1:08:01pray for. We can pray for mandamas,
1:08:03saturary and prohibition.
1:08:07Are we together? Now it means therefore
1:08:10if your client is seeking more than the
1:08:12three then you have to go through the
1:08:15petition because it is the petition that
1:08:17will give you the leeway to pray for
1:08:19more
1:08:20than just the three orders of judicial
1:08:22review. Are we together?
1:08:26>> Thank you. Yes. Now that's clear.
1:08:29>> All right. So, let us go to something
1:08:32here.
1:08:35I want us to draft
1:08:38uh judicial review
1:08:41uh application.
1:08:43Uh but this is a very simple document.
1:08:45By the way, it looks very bulky. Yes, it
1:08:47is very bulky. Uh in criminal, you'll
1:08:50always find it in question six. uh in
1:08:53civil you'll find it in question one and
1:08:56uh sometimes if it is question six is
1:08:59not a complete question mostly question
1:09:00one
1:09:02okay so but it's a very simple document
1:09:05judicial review document there are five
1:09:06documents yes but it's a very simple
1:09:09document so I've said you can get it
1:09:11through a petition you can get it
1:09:12through an application so let us go
1:09:14through the that application let us go
1:09:17through that application
1:09:19so that this is this is the same thing
1:09:21we have
1:09:22drafted in this class. The same thing
1:09:25we've done in this class. Uh so I want
1:09:27us to just go through it again one by
1:09:30one as we draft to see what happens. Now
1:09:33generally we have five documents forming
1:09:37up the judicial review application.
1:09:39There are five documents. These
1:09:41documents are very are very simple.
1:09:44Okay. There are five documents. Now the
1:09:48documents are certificate of agency. Uh
1:09:50the documents are certificate of the
1:09:52agency number one. Number two, we have a
1:09:55chamber summons. Okay. And then number
1:09:58three, we have a verifying affidavit or
1:10:01this uh what you call the the verifying
1:10:03affidavit.
1:10:05So verifying affidavit. Okay. And then
1:10:09the fourth one we have the statuto
1:10:11statement. There's no particular order
1:10:13but so long as uh you have your
1:10:15certificate of emergency, you have your
1:10:17chamber summons, you have your stat
1:10:19statement and a verifying affidavit uh
1:10:22then that is okay. And lastly we have we
1:10:25have the notice of motion. Those are the
1:10:27five documents you are required to
1:10:28draft. Now the certificate of urgency,
1:10:33chamber summons, verifying affidavit and
1:10:35the statuto statement are prepared
1:10:38during the leave stage.
1:10:40When you're seeking leave, okay? When
1:10:43you're seeking leave.
1:10:45Are we together? And then once you get
1:10:47leave, then you shall proceed and
1:10:49proceed and prepare your uh prepare your
1:10:52notice of motion. Are we together?
1:10:55Prepare your notice of motion.
1:10:59I don't know what's happening to my
1:11:00screen.
1:11:10Huh?
1:11:12All right.
1:11:14Right there it is. I hope you can see
1:11:16it. All right. Sour. Now, in an exam
1:11:21setting, is it possible to drop all the
1:11:23five? Yes, very, very possible to drop
1:11:24all the five. Very, very easy. Now what
1:11:27do you normally do in an exam scenario?
1:11:30What what do you normally do in an exam
1:11:31scenario where you're drafting a couple
1:11:33of documents and you don't have a lot of
1:11:35time. So you can see the first document
1:11:38you must have a perfect caption.
1:11:40Republic of Kenya in the high court of
1:11:42Nairobi uh the miscellaneous application
1:11:44number about that of 2024 2025. Okay,
1:11:48for instance
1:11:512025, you are going to have the parties
1:11:54uh that is the applicant and then the
1:11:57respondent certificate of emergency you
1:12:00know signed dated drawn and filed by it
1:12:03is not served upon anyone certificate of
1:12:05emergency and then when you come to the
1:12:08chamber summon which is your first
1:12:09document you can see what I've done
1:12:11there okay let me highlight it in in in
1:12:15blue you can see what I've done There
1:12:18I've indicated that caption as per the
1:12:21certificate of agency above it means
1:12:24that we don't need to go back and draft
1:12:27Republic of Kenya again miscellaneous uh
1:12:30the parties there Kenya no we don't need
1:12:32to draft that again we just indicate
1:12:35caption as per the certificate of agency
1:12:38above and then we just proceed to
1:12:40chamber summon you prepare your chamber
1:12:42summons and then when we go to the next
1:12:45document which is the stat statement
1:12:46I've done the thing which is caption as
1:12:49per as per the certificate of agency
1:12:52above.
1:12:54Okay,
1:12:56same thing you prepare your statary
1:12:57statement and then uh you come to
1:13:00verifying affidavit you're going to find
1:13:02the same thing. Okay, caption as per the
1:13:05certificate of agency above. Now there
1:13:08are two things there. The first one is
1:13:10that if you get the certificate of
1:13:11agency wrong, it means you get all other
1:13:14documents wrong. That is the danger of
1:13:16doing that. For instance, if here you
1:13:18forgot and wrote magistrate court. Okay,
1:13:22you you erroneously wrote magistrate
1:13:25code.
1:13:27Okay, then it means in every document we
1:13:31shall be replicating that magistrate
1:13:33code. So we'll give you we'll give you a
1:13:36wrong in each and every document. So you
1:13:39want to make sure that your first
1:13:41document is perfect in terms of caption.
1:13:44Okay, it is perfect in terms of caption.
1:13:47So in the high court and all that. So
1:13:49you come here and simply tell us that
1:13:51caption as per the certificate of agents
1:13:53above. That is number. Number two, you
1:13:55don't have to do this.
1:13:57Okay, this is for the lazy students who
1:14:00are not very fast and you want to save
1:14:01time because in an exam time is very
1:14:03crucial. You can still draft this
1:14:05caption. Again you can see in my on my
1:14:09screen I have not written in the matter
1:14:12of in the matter of in the matter of in
1:14:14the matter of I've not written that. So
1:14:16don't don't write it. Don't write it.
1:14:20Don't write it
1:14:23all together because you don't have
1:14:25time.
1:14:27I hope that is clear. Now let us start
1:14:31and look at each and every document. we
1:14:33can, you know, I prefer that you write
1:14:36uh you write on a paper because that is
1:14:39what you're going to be to be doing. So,
1:14:42as we type it out, uh you uh you write
1:14:45it in a paper and then as we move down,
1:14:47I will be telling you the changes uh
1:14:49that uh are being done in that document
1:14:52until the very end. Now this document
1:14:55that we're drafting now is also supposed
1:14:58to capture the judicial review
1:15:00application in the execution against the
1:15:03government. Remember the one did against
1:15:05the government. It is supposed to
1:15:06capture that as well.
1:15:10Okay. Now so you can see rep our caption
1:15:13republic of Kenya uh in the high court.
1:15:16Judicial review must always be in the
1:15:18high court. And then um the parties we
1:15:22have uh the applicant sometimes you call
1:15:24them uh you to call them exparty
1:15:30exarty applicant. Okay. And then the
1:15:34respondent. So the respondent is the
1:15:36person that has made a decision that you
1:15:38want to challenge. And then the first
1:15:41document is certificate of agency. That
1:15:43is where you start from. Okay. So you'll
1:15:46simply come and say so remember guys
1:15:47we've not talked about this but let me
1:15:49talk about it now a certificate of
1:15:51agency is done where there is an urgency
1:15:57it is urgent okay so what are you
1:16:00supposed to uh say in your certificate
1:16:03of agency uh in an exam in an exam you
1:16:06make it very simple just even a product
1:16:08like like what you can see in practice
1:16:12it is different in practice you have to
1:16:15justify why it is agent. So you'll have
1:16:18to give us paragraphs and paragraphs
1:16:21telling us why it is why it is urgent.
1:16:25Doesn't have to be a lot of paragraphs
1:16:26anyway. So what I'm saying is you have
1:16:28the leeway or the advantage to shorten
1:16:30it in in an exam. For instance, you
1:16:33could only say I, Wilora, an advocate of
1:16:36the High Court of Kenya, do hereby
1:16:39certify this application as extremely
1:16:41urgent for the reasons that the
1:16:42respondent has threatened vital letter
1:16:45dated 12th of June 2024 to suspend the
1:16:49applicant from the school that unless
1:16:51this application is had on a priority
1:16:53basis, the applicant's right shall be
1:16:55violated.
1:16:57So, you've given us the urgency. It is
1:16:58urgent because
1:17:00this person has threatened. So there's a
1:17:03threat. It is urgent. And then dated and
1:17:06signed uh there advocate.
1:17:10Okay. Uh that is the advocate for the
1:17:13advocate for the applicant or the
1:17:16advocate for the expert. Expert
1:17:19applicant.
1:17:21Guys, are we together on that
1:17:23certificate of agency? Remember that
1:17:25certificate of agency is not served. So
1:17:27it is urgent. So you don't want to serve
1:17:29anyone. So drawn and filed by but there
1:17:32is no to be served upon because
1:17:34certificate of agency is not served.
1:17:37I hope we are together.
1:17:40I hope we are together.
1:17:51Okay.
1:17:53Now this is a certificate of agency.
1:17:55There's nothing. I don't even want a
1:17:57question on this one. There's nothing to
1:17:58ask here. Evans, what do you want to ask
1:18:01on TV?
1:18:07>> I'm sorry, it was a mistake. Sorry.
1:18:10>> It better be.
1:18:13All right. There's nothing to ask on a
1:18:15certific is a very simple document.
1:18:18It is just what it is. The first part is
1:18:20just the caption of parties. Okay. The
1:18:23second part is a certificate of agency.
1:18:24Now a certificate of agency is a
1:18:26certificate by the advocate. Let me
1:18:28explain it. It is a certificate by the
1:18:30advocate. That is why you are saying I
1:18:32so and so an advocate of the high court
1:18:35of Kenya.
1:18:36This certificate cannot be done when
1:18:39this person is representing themsel. It
1:18:41must be done by an advocate. It is
1:18:44called a certificate of agency. It is a
1:18:46certificate that is signed by that
1:18:48advocate. And that advocate after
1:18:51looking at that file the advocate has
1:18:54concluded that this matter is urgent.
1:18:56Why? Now in an instance where
1:19:00there are so many reasons why this
1:19:02matter is urgent then you give it in
1:19:04terms of paragraphs. For instance,
1:19:07I'm just saying for the reasons that
1:19:11for instance there we are going to have
1:19:15sorry one
1:19:18maybe two you you pa them as you go down
1:19:21that the school has uh has as has has
1:19:24threatened
1:19:26uh to suspend this. So if the reasons
1:19:28are given in the question there are so
1:19:29many they're not just one it is more
1:19:31than one then you just pa them like
1:19:33that. Okay. I an advocate of the high
1:19:36court doc this application as extremely
1:19:38urgent for the reasons that number one,
1:19:40number two, number three, number four.
1:19:41Full stop. Dated and signed and then
1:19:45drawn and filed by. Full stop.
1:19:59Okay.
1:20:05Okay. S. Now after you do that, then we
1:20:08are going straight we are going straight
1:20:11to our to our chamber summons. Okay. Now
1:20:14the application is a chamber summon
1:20:16application. If you are going to seek
1:20:18leave of court then we are going to be
1:20:23using a chamber summons application. Now
1:20:26that chamber summon application is
1:20:28brought under order 53 of the civil
1:20:30procedure rules. Don't go there and do a
1:20:32CPR and say a CPR.
1:20:36Okay?
1:20:38Don't write CPR. That is just for
1:20:40purposes of learning CPR. If you say CPR
1:20:44in an exam, even the examiner will have
1:20:47to perform some CPR on your marks. Okay.
1:20:51Now, chamber salmon. So what are you
1:20:53supposed to say in the chamber summon?
1:20:56Okay, you have been told you have been
1:20:59told that your client okay your client
1:21:02is going to be suspended from the
1:21:04school. Now you are going to the high
1:21:06court to stop Kenya school of law from
1:21:09suspending your client.
1:21:13Okay. So you're going to do your chamber
1:21:15summons application. So how is your
1:21:16chamber summon application supposed to
1:21:18look like? What are you saying? Now
1:21:20remember this is an application for
1:21:22leave. It is an application for leave
1:21:26and I want you to see the difference
1:21:29between the chamber summons and the
1:21:31notice of motion.
1:21:33Okay. Now under 53 uh let all parties
1:21:38concern attend before the Atlanta judge
1:21:39in chambers on the dash day of dash
1:21:4210:25 at 9:00 in the phone noon or soon
1:21:44thereafter so as a council for applicant
1:21:46may be heard on it application for
1:21:49orders that what orders are you seeking
1:21:52the first one which is a standard prayer
1:21:55is that the court docify this
1:21:57application as agent because you have a
1:22:00certificate of agency okay and then
1:22:03Prayer 2, three, and four are now your
1:22:06substantive prayers. Okay? And see how
1:22:08we've written them that the court do
1:22:10grant the applicant leave to apply. Now,
1:22:15in the chamber summons, you are pray it
1:22:17is a leave application. So you must pray
1:22:19for leave to apply that the court do
1:22:23grant applic the applicant leave to
1:22:25apply for the judicial review order of
1:22:28saturary quashing the decisions of the
1:22:31respondent to suspend the applicant.
1:22:35Okay I want you to understand the
1:22:37science or the technique behind that.
1:22:41Remember guys remember guys there are
1:22:44three orders of judicial review. There's
1:22:46the mandamas, there's saturari, and
1:22:49there's prohibition.
1:22:51Okay? Now, if you're going to seek
1:22:53leave, you have to seek leave for all of
1:22:56them
1:22:58guys. You have to seek leave for all of
1:23:00all the three.
1:23:03It means when you are drafting your
1:23:05document and you realize that in this
1:23:08judicial again, let me say it like this.
1:23:11When you are going to court for orders
1:23:12of judicial review, you have to know
1:23:14which order.
1:23:16You don't have to pray for all the three
1:23:17at once.
1:23:19You can have one application where
1:23:21you're only praying for one. For
1:23:23instance, when you are executing against
1:23:25the government, like we said, then at
1:23:28that point, you are only going to be
1:23:30praying for one order of judicial review
1:23:32that is mandamas to compel the
1:23:34government. And therefore if you are
1:23:38drafting the chamber summons you'll be
1:23:39saying number one that the application
1:23:41be certified as urgent. And then your
1:23:43second prayer which is the last main
1:23:45prayer is that the court do grant the
1:23:48applicant leave to apply for the
1:23:50judicial review order of mandamas
1:23:53compelling the respondent to pay
1:23:57okay to pay who? To pay the expert
1:23:59applicant the Kenya shillings of Kenya
1:24:02shillings this and that. That is all
1:24:05you're praying for because when it comes
1:24:06to the execution against the government,
1:24:08there's only one prayer for mandamas
1:24:10that is you're praying for full stop.
1:24:13However, in the normal sense of it, when
1:24:16you're doing judicial review in other
1:24:18instances, then you have to know two
1:24:21things. The first thing you need to know
1:24:22is that there are only three orders of
1:24:24judicial review. And therefore, if you
1:24:26are intending to pray for those three
1:24:28orders of judicial review, then you must
1:24:30seek leave for all of them.
1:24:34So if you want madamas, if you see that
1:24:36question once madamas, that question
1:24:38wants aari and that question once
1:24:40prohibition then as you can see on the
1:24:43screen that the court do grant leave to
1:24:46the applicant sorry grant the applicant
1:24:49leave to apply for judicial review order
1:24:52of saturary quashing. Secondly, that the
1:24:55court do grant the applicant leave to
1:24:58apply for the judicial review order of
1:25:01Mandamas compelling the respondent to
1:25:04third that the court do grant the
1:25:07applicant leave to apply for judicial
1:25:10review order of prohibition.
1:25:13Okay, together restraining the
1:25:16respondent from from that. That is the
1:25:20first bit. The second bit that is also
1:25:22very fundamentally important. Okay,
1:25:25fundamentally important is the same
1:25:27thing. It is important. Okay,
1:25:30is that you don't have to pray for the
1:25:33three.
1:25:35We are not saying that when you bring a
1:25:37judicial review application, when you
1:25:39bring a judicial review application, you
1:25:41must only pray for three. No, you can
1:25:44pray for 10 orders of saturari, 10
1:25:47orders of mandamas and 10 orders of
1:25:50prohibition. It simply means that you
1:25:53look at your question and ask yourself
1:25:55from this fact
1:25:58how many mandamas orders do I want?
1:26:00Because one mandamas will only compel
1:26:02one thing. Another mandamas will compel
1:26:05another thing. For instance, if your
1:26:08client has been suspended from KSL
1:26:11and KSL has refused
1:26:14to give him exams,
1:26:18then it means you might be praying for
1:26:20two mandamuses. The first one Mandama's
1:26:23compelling KL to readmit him. Another
1:26:26Mandamas compelling KSL to give him
1:26:28exams.
1:26:30Okay, it's the same same chamber
1:26:33summons. And then you go to the order of
1:26:35saturary. Okay. Now a saturary order is
1:26:39an order that quashes a decision. Now
1:26:42you ask yourself from this fact pattern
1:26:44that I've been given how many things do
1:26:47I need to quash? How many decisions do I
1:26:49need to quash? Number one maybe there
1:26:51was a letter a decision where your
1:26:54client was your client was suspended.
1:26:58Okay there was a decision where your
1:27:00client was suspended. you are going to
1:27:02quash that decision but also there's
1:27:04another letter
1:27:07where your client was his name was
1:27:10struck from the list of those are
1:27:11sitting exams so you have to quash that
1:27:14again so it means when you are quashing
1:27:16you can't pray for one saturary to qu
1:27:20all the three no
1:27:22one order does one thing one saturary
1:27:26one thing one mandamas one thing if you
1:27:29want to stop the school from doing three
1:27:30things you'll pray for three orders of
1:27:32prohibition. Are we together? And also
1:27:35lastly, don't pray for saturary where
1:27:38saturary is not needed. Don't pray for
1:27:40mandamas where mandamas is not needed.
1:27:42Don't pray for prohibition where it is
1:27:44not needed. Like I've said that if you
1:27:46read the question and you see that this
1:27:48one this one will only need two
1:27:49mandamuses or three madamases then just
1:27:52pray for the three mandamases and leave
1:27:54alone sari and prohibition. Are we guys
1:27:56together?
1:27:58Are we together?
1:28:01My time is running out. Now look at the
1:28:05pattern. I have said that the court do
1:28:07grant the applicant leave.
1:28:11Okay. That the court do grant the
1:28:13applicant leave to apply. Leave to
1:28:16apply. And then after that you tell us
1:28:19which application is based on the
1:28:21following grounds. Let me highlight it
1:28:23in in uh let me b it which application
1:28:27is based on the following grounds. So
1:28:29you just give us the grounds the normal
1:28:30grounds that this person was in KSL he
1:28:33was called to the director's office he
1:28:34was told where are you coming from and
1:28:36then he was told you suspended full that
1:28:38is the ground and then which application
1:28:41is further supported by the affidavit of
1:28:44th
1:28:46that is the applicant anyway dated and
1:28:48signed drawn and filed by to be served
1:28:51to be served upon
1:28:54are we together that is the second
1:28:56document are we together on the second
1:28:58document ment.
1:29:02Good. Now, let's go to the third
1:29:04document.
1:29:06>> Thank you. Let's go to the third
1:29:07document. The third document is now the
1:29:09statuto statement. It's a very simple
1:29:11document. It only has it only has three
1:29:14things. Okay. The statuto statement. So,
1:29:17what are we talking about in the statuto
1:29:19statement? The first one is the name and
1:29:21description of the applicant.
1:29:25Okay? where you're telling us the
1:29:27applicant is a female adult of sound
1:29:28mind whose address of service for
1:29:30purposes of this application shall be
1:29:32that full stop. Number B is the reliefs
1:29:36you are seeking. What reliefs are you
1:29:39seeking? You just come back to your
1:29:40chamber salmon. Okay, you come back to
1:29:43your chamber salmon here. What are the
1:29:45main reliefs you're seeking? 2 3 4. But
1:29:50in this sense, you are not you are not
1:29:52saying them in terms of leave. So
1:29:56let's go to the relief. So the first
1:29:58relief you're seeking for may be a
1:30:00judicial review order of saturary
1:30:03quashing a judicial review order of
1:30:05mandamas compelling a judicial review
1:30:07order of prohibition uh restraining full
1:30:10stop
1:30:12and maybe cause for the application. So
1:30:14those are the remedies you're seeking.
1:30:16You're seeking judicial review uh
1:30:18judicial review orders. Okay. And then
1:30:22lastly, the grounds that you are relying
1:30:24on the grounds of the grounds of uh your
1:30:28application. So what grounds are you
1:30:29relying on? Okay, that is just a summary
1:30:32of the summary of the facts that the
1:30:34respondent for instance
1:30:38that the respondent went to KSL on this
1:30:41day. He did not pay school fees. He was
1:30:43told to go away and never come back. So
1:30:46just give us the narration of what
1:30:48happened in that story that will be
1:30:50given in your exams.
1:30:52Are we together? And then lastly lastly
1:30:55is now the verifying affidavit. Now the
1:30:57verifying affidavit is the one that
1:31:00accompanies the application and it is a
1:31:02document that originally supposed to be
1:31:04called a supporting affidavit but we
1:31:06call it a verifying affidavit
1:31:07nonetheless but it is a supporting
1:31:09affidavit.
1:31:11Okay. Now this supporting affidavit will
1:31:13do two things. So this verifying
1:31:15affidavit will do two things. The first
1:31:17one it will present the facts of what
1:31:20happened. Okay. And then the second one
1:31:23it will aduce evidence. So let's see I
1:31:29to of pure box that do hereby make oath
1:31:34and state as follows. Number one that I
1:31:37am an adult of sound mind the applicant
1:31:40hearing and therefore competent to swear
1:31:42this affidavit. Okay. Number two, that
1:31:45on the second day of June 2023, I
1:31:48received a letter from the respondent
1:31:50inviting me to a disciplinary hearing.
1:31:53And then you attach that letter, you add
1:31:56that letter as evidence. Okay? For
1:31:59instance, attach here with and marked
1:32:02TJ1 is a copy of the sale. We have
1:32:05drafted supporting affidavit in this
1:32:07class, so I know you understand what I
1:32:08mean. But when you're attaching a
1:32:10document, if you say something that you
1:32:12have evidence for, you attach that
1:32:14evidence. You You mark it and you attach
1:32:17it.
1:32:18You mark it and you attach it.
1:32:22Are we together now? How do you mark it?
1:32:25Now it is marked TJ1. So who is TJ1? So
1:32:30TJ1 remember that our applicant is to
1:32:32John. So that is TJ
1:32:36one. If your name is
1:32:39Oching Evans, then the document will be
1:32:42marked O E. If your name is Sila
1:32:44Immaculate, your document will be marked
1:32:46S E. So the initials of your name. So S
1:32:51E1, it means that is the first document.
1:32:53For instance, here it is the first
1:32:55document. When you go to paragraph 3 and
1:32:57we say uh that we responded by saying we
1:33:00cannot attend. We sent a letter dated
1:33:02maybe 8th of June saying we cannot
1:33:04attend. Then you you're going to say
1:33:06there attach here with end mark TJ2 is a
1:33:10copy of the said letter. So TJ2 being
1:33:14TJ2 being the second document.
1:33:17So you say that until the very end and
1:33:20then sworn at Nairobi this dash day of
1:33:24dash 25 by the said person before me
1:33:28commissioner for oaths draw by to be
1:33:31served upon. Guys, are we together with
1:33:33that? You are done with leave stage.
1:33:36Leave stage is done. So, you have prayed
1:33:38for leave. You have prayed for leave in
1:33:41the chamber summons. You have prayed for
1:33:43leaves in the chamber in the chamber
1:33:45summons. Are we together? You prayed for
1:33:47leave in the chamber summons. And then
1:33:49now you proceed and attach your
1:33:51established statement which of course is
1:33:53just the name, the relief and the
1:33:55grounds. Okay. And then we have now the
1:33:58verifying affidavit where you give us
1:34:00the documents and the evidence that you
1:34:02have just the narration of the facts but
1:34:04where there's evidence you attach
1:34:06evidence. And then lastly
1:34:09is now the leave stage. Okay. And I want
1:34:12you to see the shift. Now in our leave
1:34:18stage we have the expert applicant being
1:34:22the first person and then the applicant
1:34:24being the expert applicant. Oh sorry
1:34:27actually let me not call this person the
1:34:28expired applicant. Let's the let's call
1:34:30that person the applicant.
1:34:32Okay so our applicant is to John. Okay
1:34:36and then the Kenya school of law the
1:34:38respondent. So we have already applied
1:34:41for leave and we have been given leave.
1:34:43Now if you given leave we are now going
1:34:45to file our substantive application and
1:34:48that is a notice of motion. Now in a
1:34:50notice of motion the parties will
1:34:52change. the republic will become the
1:34:55applicant. Now republic if you have
1:34:58leave the republic will now become the
1:35:00applicant versus Kenya school of law
1:35:03that is the respondent and then our
1:35:06original applicant under the li state
1:35:08which was to join becomes now the expert
1:35:11applicant
1:35:12okay expert applicant so that changes
1:35:18now why is that changing is because it
1:35:20was deemed that judicial review orders
1:35:23were done uh I mean were issued on
1:35:26behalf half of the citizens by the
1:35:30government. Okay. So is the republic the
1:35:33state
1:35:36that was rectifying that. It is a
1:35:39historical thing. Doesn't really make
1:35:41sense now, but it is a historical thing.
1:35:43So when it comes to the application, the
1:35:46republic will become now the substantive
1:35:49applicant. So if you're given a judicial
1:35:52review application in the substantive
1:35:55stage notice of motion then the republic
1:35:58must be the applicant and then your
1:36:01applicant your client must be the expert
1:36:03applicant. Are we guys together until
1:36:05that point?
1:36:10>> Yes we are.
1:36:14>> Okay. Now let's go to the next thing
1:36:16that uh let's go to the next thing that
1:36:18um uh will change. Of course, you'll
1:36:20indicate notice of motion and then of
1:36:22course it is still under 53 of the civil
1:36:24procedure rules and of course sometimes
1:36:27you indicate a person person to leave
1:36:29dated that day I mean when leave was
1:36:32given
1:36:34not important and then let's look at the
1:36:36application now what is it saying take
1:36:38notice that this honorable court shall
1:36:40be moved on the dash day of -25
1:36:44at 9:00 a.m. in the forum or soon
1:36:45thereafter where the council for the
1:36:47expert applicant shall be heard on the
1:36:51application for orders that number one
1:36:55look at what we are praying for now a
1:36:58judicial review order of saturary
1:37:00quashing the respondent's decision to
1:37:03suspend the applicant now in our chamber
1:37:06summon we said that the applicant be
1:37:08granted leave leave to apply for okay in
1:37:13our chamber summon we
1:37:14Leave to apply for judicial review order
1:37:17of saturary. Leave to apply for judicial
1:37:20review order of mandamas. Leave to apply
1:37:22for judicial review order of
1:37:24prohibition. Now because we already been
1:37:27given leave. Now this is the substantive
1:37:30stage. We are simply going to say a
1:37:32judicial review order of saturary
1:37:36caution. A judicial review order of
1:37:39mandamas compelling. A judicial review
1:37:42order of prohibition restraining. Are we
1:37:45together? If you have more prayers that
1:37:47is still judicial review remember you
1:37:50can only pray for judicial review
1:37:51orders. No other orders. So you I've
1:37:53said you can have two saturary three
1:37:55mandamas four prohibition
1:37:57or 10 saturas
1:38:01seven prohibitions.
1:38:03Okay. So here you don't pray for leave.
1:38:06Leave is in the chamber salmon. And then
1:38:08of course which application is based on
1:38:10the following grounds. Okay, the same
1:38:12same grounds that you have now. And of
1:38:15course this document is not supported by
1:38:18any supporting affidavit because if
1:38:20you're drafting the five of them,
1:38:22remember if you're drafting the five of
1:38:23them, you have already prepared the
1:38:25verifying affidavit and the statuto
1:38:27statement. You already have the
1:38:29verifying affidavit and the statuto
1:38:30statement. And this notice of motion
1:38:33will be served together with the statuto
1:38:35statement. it will be served together
1:38:38with the statuto statement
1:38:40and the verifying affidavit. So you
1:38:42don't prepare another supporting another
1:38:44supporting affidavit. However, if you're
1:38:47told to prepare the substantive stage
1:38:49alone, then you prepare the notice of
1:38:51motion and the supporting affidavit
1:38:53which is the same thing as the verifying
1:38:56affidavit.
1:38:59might of course remember that the
1:39:01republic becomes the applicant and then
1:39:03uh the respondent is the same respondent
1:39:06and then your client becomes the expert
1:39:08applicant. So you become the advocate of
1:39:11the expert applicant.
1:39:14Are we together? That is the five
1:39:17documents of judicial review. That is a
1:39:19petition for judicial review. Now I will
1:39:22take questions and then we shall adjourn
1:39:23the class. It's a very simple document
1:39:26by the way. It's a very very simple one.
1:39:29Once you understand what goes into the
1:39:31statuto statement, which is the name of
1:39:32the applicant, the reliefs you're
1:39:35seeking and the ground you're relying
1:39:36on, that is all. But also you need to
1:39:39understand how the caption changes and
1:39:42how the prayers changes. I've said in
1:39:44the application for leave, those are the
1:39:46first four documents, it is your client,
1:39:49the applicant versus the respondent.
1:39:52Okay? And the prayers are leave to apply
1:39:56for judicial review order of this. Leave
1:39:59to apply for judicial review order of
1:40:01this. Leave to apply for judicial review
1:40:03order of this. That is in the first
1:40:06chamber summon which is leave state.
1:40:08Once you get leave and you're now
1:40:10preparing your substantive document then
1:40:13the things will change as follows. Okay.
1:40:16Number one, of course, you know, the
1:40:17republic will become the applicant and
1:40:20your client will become the expert
1:40:22applicant. Number one. Number two is
1:40:25that the prayers will now not be will
1:40:28now not be leave to apply for you've
1:40:30already gotten that leave. So you
1:40:32proceed and pray for that. Okay. a
1:40:34judicial review order of saturary or you
1:40:36can simply say that the court do issue
1:40:38an order a judicial review order of
1:40:40saturary that the court be pleased to
1:40:43you know those many things that people
1:40:44say but simply you can go save the point
1:40:46by saying a judicial review order of
1:40:49this a judicial review order of this a
1:40:51judicial review order of this or an
1:40:53order of saturary an order of madameas
1:40:55an order of prohibition and then if you
1:40:57have drafted the five documents you
1:40:59don't draft the supporting affidavit but
1:41:01if you have just drafted the The
1:41:04question told you leave was already
1:41:06obtained then it means you only prepare
1:41:08the notice of motion and the supporting
1:41:10affidavit.
1:41:12Are we together? And most of the time
1:41:13you don't need if if you run out of time
1:41:16leave alone the supporting affidavit.
1:41:18But that is all you need to you need to
1:41:20have. So again that is clear.
1:41:29So you can see that uh we have sought
1:41:33these orders in the notice of motion. We
1:41:35have sought these orders in the notice
1:41:37of motion. However, we could have
1:41:39drafted a petition and sought them in
1:41:42the application sorry and seek them in
1:41:44the in the petition. So that's why I've
1:41:46said you can pray for this in the
1:41:49application or in the petition depending
1:41:52on the nature of the question. If the
1:41:54question says prepare the pleading
1:41:56and you can see very well that there are
1:41:58more prayers other than just the orders
1:42:01of judicial review petition. If the
1:42:03question says prepare the application,
1:42:05it is the application. If the question
1:42:06says uh go and seek leave, it is the
1:42:09application for leave. If the question
1:42:11says leave is already sought, uh prepare
1:42:14the substantive document, it is a notice
1:42:16of motion. I hope that is clear. Uh that
1:42:19brings us to the end of the class. If
1:42:20you have a question, please ask. If
1:42:23there's no question I am happy to adorn
1:42:25the class there.
1:42:37All right. So, should I stop uh
1:42:41should I stop uh presenting?
1:42:47Uh
1:42:47>> just one second if Oh god.
1:42:55I will share this also in the group as
1:42:58well.
1:43:01That's good. That's okay. Thank you.
1:43:12All right. So,
1:43:15uh the recording has been stopped.
1:43:17Uh please uh make sure you get the
1:43:20recording right now.
1:43:22Uh
1:43:24please make sure you get the recording
1:43:26right now.
1:43:30Sila, what is your question? I've
1:43:32already stopped sharing

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