By Sarah Muhonja*
Justice David Majanja was a judge of the high court who upheld the constitutional principles highlighted in both the preamble and article 10 of the constitution. He delivered several judgements that have enriched jurisprudence in Kenya and will definitely be remembered for the same. His dedication to the law was admirable and his legacy will live on through the judicial precedents he set in his time on the bench. This paper is a celebration of his heroic judgements and a tribute to his death.
His judgements are well known for the meticulous approach of law that he used, they read with authority and one could infer his deep understanding of the intricacies of law. Despite his demise, his spirit will still live through the judgements he made over the years, making his legacy eternal.
This case review analyses the judgement in Dry Associates Ltd v Capital Markets Authority and 2 others[i], with special attention to judicial review while briefly highlighting other issues in the case, presided over by Justice Majanja
Judicial review can be defined as the power vested in superior courts to review decisions, acts and omissions of public authorities to ensure that they act within the scope of their powers.[ii] It can also be defined as a control mechanism used by the judiciary in fulfilling its constitutional mandate of protecting against abuse of power. The late Justice Majanja was sure to fulfil this constitutional requirement through his rulings and judgements which actively highlighted the role of judges and courts in judicial review. In Dry Associates Ltd v Capital Markets Authority and 2 others, Justice Majanja gave explanations and provided a practical example of application of judicial review in the courts. This case review intends to discuss judicial review processes and principles in Kenya through this decided case.
Dry Associated Limited had been licensed by the first respondent to conduct business of a fund manager. Capital Markets Authority also licensed Crown Bergers Limited to supply promissory notes in a bid to raise Ksh.300,000,000 from the open market. Dispute arose when an employee of Dry Associates Limited allegedly fraudulently withdrew an investor's money. Capital Market Authority and Crown Berger Limited sought to sanction both the employee and the employers pursuant to provisions in the Capital Markets Act. The Dry Market Authority then moved to court in contest of this decision.
The petitioners sought in their prayers that the respondents had breached the rules of natural justice[iii], violated their rights under article 47 of the constitution,[iv] and sought remedies of judicial review. These remedies could be in the form of the writ mandamus and orders of prohibition. After submissions made by parties' counsels, Justice Majanja identified that the issues for determination were: whether the fundamental rights in articles 50(1), 27, 35, 47, 40 and 48 of the constitution. In the determination of these issues, the learned judge drew the principles of the rule of law from the constitution under articles 10,[v] 259[vi] and precedents under the case of Centre for Rights and Awareness & Others v Attorney General Nairobi[vii] and Harun Mwau v The Attorney General & others[viii]. Justice Majanja also gave emphasis on article 22 since the petitioner claimed that his human rights had been violated. For the purpose of this paper, I shall discuss elements pertaining to judicial review highlighted in the case.
The petitioner had cited violation of rights under article 47 and 50(1) of the constitution, however the judge averred that article 50 would not be applicable in his case since it gives provisions for fair and public hearing which was not considered by the counsel for petitioners. He also appreciated the existence of article 47 of the constitution, which relieves the burden of handling administrative matters by common law or judicial review by the Law Reform Act,[ix] but would be handled by the standards set out in the constitution. The judge then relied upon the decisions of Kenya National Examination Council v Republic exparte Geoffrey Njoroge and others and, Kenya National Examinations Council v R exparte Kemunto Regina Ouru [x] in the interpretation of article 47. He also emphasised that the elements of fair administrative action are conjunctive in nature.
After consideration of arguments by both parties, Justice Majanja did not find any infringement of the rights of the petitioner in article 47. In his judgement, he gave a detailed analysis of the letters that were sent to Dry Associates Limited as well as those sent to Crown Limited. He highlighted that the contents of the letters were consistent with provisions of section 11 of the Capital Markets Act, which provided for the implementation of risk management processes. The letters sent, in brief, had reiterated the provisions in the act. Since the letter had a backing in law, it was deemed to not be an infringement of any constitutional rights. The learned judge further inferred that the petitioners were trying to shift blame to a third party, if the judge had allowed this, it would be inconsistent with the provisions of the act and would be a void determination. Ultimately, the case was dismissed on the ground that the petitioner's argument lacked merit.
In conclusion, this case highlights many key aspects of judicial review; including the constitutional and statutory underpinnings, its elements, remedies and finally showed the application of the same. Additionally, the case laws used by the learned judge also provide more information on the topic. The logic and reliance of the law used in debunking this case is extraordinary and very informative.
* The author is a trainee editor at the Kabarak Law Review
[i] Dry Associates Limited v Capital Markets Authority and 2 others, Constitutional Petition No. 328 of 2011, Judgement of the High Court of Kenya at Nairobi (2012) eKLR.
[ii] Republic v Secretary of State for the Environment, ex parte Nottinghamshire County Council, 12 Dec 1985 [1986] AC 240, HL(E).
[iii] A. C. Lloyd, ´Natural Justice´, 12 The Philosophical Quarterly (1950-), July 1962, 219.
[iv] Constitution of Kenya (2010), article 47.
[v] Constitution of Kenya (2010), article 10.
[vi] Constitution of Kenya (2010), article 259.
[vii] Centre for Rights and Awareness & Others v Attorney General Nairobi, Petition No. 16 of 2011, Ruling of the High Court at Nairobi (2011) eKLR.
[viii] Harun Mwau v The Attorney General & Others, Nairobi Petition No. 146 of 2011 (Unreported)
[ix] Law Reform Act (Cap 26 of the Laws of Kenya).
[x] Kenya National Examinations Council v R exparte Kemunto Regina Ouru Nairobi Civil Appeal No. 127 of 2009 (Unreported).
