Time Mediation In Kenya was regulated!

There is no denying that mediation is the ideal mode of resolving all disputes. But equally, it is beyond argument that of the ADR methods it stands out as the most engaging yet informal mode of dispute resolution. In fact, it is the meddle ground between the often informal negotiation and the highly legalistic arbitration.

Mediation, after the success of Annan's mediation effort in solving the post-election strive in Kenya, is perceived in awe even by lawyers who hitherto overlooked it. More people are turning to mediation to sort their disputes. Hence, the need to study mediation as a method of disputes resolution closely.

This article makes a brief comparison between the legal framework on mediation in Kenya or lack of it and that in Uganda and USA. Mediation in the international law regime is also briefly considered. The aim is to justify the proposal that Kenya adopts court-backed mediation as a matter of urgency.

What is mediation?

Mediation is a voluntary, non-binding dispute resolution process by involving a third party neutral. The neutral party helps the parties to the dispute in reaching a negotiated settlement. The settlement is then reduced in writing and when signed by all the parties becomes binding just like a normal agreement.

In essence, the mediator assists the two or more parties in negotiating a settlement agreement, with concrete effects, on a matter of common interest. The purpose of mediation is not so much as to settle the matter in favour of one party. Rather, mediation creates a situation where all the parties feel that they have won.

Mediation is applied in solving disputes in practically all human concerns. However, its main fields of application are business/commerce, politics, diplomatic disputes, environmental disputes, family disputes and minor forms found in other fields.

What is the role of a mediator?

When faced with a matter, a mediator is identifies what is commonly called the BATNA of the same, that is, the Best Alternative to a Negotiated settlement (commonly referred to as BATNA). S/he also identifies the Worst Alternative to a Negotiated Settlement (WATNA). The mediator engages the parties to get to the bottom of the issues between.

The question to be asked is, "What is the bottom line?" Parties are encouraged to look at the issues from different standpoints. The mediator may then hold caucus meetings with the parties. However, it is the parties themselves who come up with the settlement. However, the mediator is to ascertain that the settlement is comprehensive, clear and workable.

Why Mediation?

Mediation, not only effectively resolve current disputes, it helps prevent future ones. As a mode of dispute resolution, mediation has raft of advantages over other methods. For instance, in mediation unlike litigation, there are no adversaries, just parties. Mediation also provides speedy resolution and often at low cost while preserving the relationships between parties.

In mediation parties are merely empowered to solve their bone of contention. Mediation gets the disputants to share the responsibility for for resolving the dispute. Therefore, it develops in them the ability to make an independent contribution to a dispute's solution.

In addition, Mediation can:

·         Open dialogue between parties

·         Identify alternative solutions towards a win for all parties

·         Prevent or reduce court and legal fees

·         Improve the business reputation of the parties as being amicable

·         Improve the business relationship between parties.

·         Prevent disputes from affecting normal business of the parties.

Not only does the use of mediation bring benefits to the parties involved and their businesses, but it also has the following advantages over court proceedings:

·         Mediation is usually faster

·         Mediation is more cost-effective

·         Mediation is more private and confidential

·         Mediation creates the appropriate environment to address the conflict

·         May result in an understanding on how deal with future issues

·         Mediation is appealing when disputes are international in nature

That is not to say mediation is without demerits. The success of mediation lies on the willingness of the parties to make the necessary concessions. Mediation can only be as effective as the parties wish it to be and this is governed by their immediate situation. Mediation is also not binding and parties have sometimes used it merely to delay the negotiation process or to obtain more information about the other party's case.

What is the law on mediation?

Law and mediation are inseparable in that most commercial disputes referred to mediation are legal in nature. Besides, parties usually resort to mediation after first engaging the legal remedies available. In addition, due to non-binding nature of mediation, parties appeal to legal avenues after settlement to render the decisions thereof binding and enforceable. In the recent times, the trend towards having mediation provided for by law has also emerged.

Mediation and law in Kenya

Kenya does not yet have a comprehensive and integrated legal framework to govern the application of mediation in the resolution of disputes. The framework in place has largely been derived from international law and practice which have been reduced into guidelines by institutions that (by themselves or their members) offer mediation services.

In any event, the constitution of Kenya actually promotes litigation at the expense of non-litigious dispute resolution. For instance, the constitution establishes the judicial system of the country, which is adversarial in nature. The constitution also guarantees as a matter of fundamental rights, direct access to the High Court through a constitutional reference.

However, parties in litigation can engage in mediation outside the court process, then move the court to record a consent judgment. This procedure exists as a remote form of court-annexed mediation.

On the other hand, parties in a dispute that is not before a court may undertake mediation and conclude the mediation agreement as a contract inter partes enforceable and binding as between them, so long as it abides by the provisions of the Law of Contract Act.

Under customary law, mediation is applied in resolution of many disputes in Kenya. The notorious ones are boundary conflicts and family conflicts. In both cases, and especially in respect to boundary conflicts, parties in dispute bring the matter before a panel of elders who are drawn from respected members of the society. The elders listen to the parties and encourage them to come to a consensus. This serves to permit access to justice for the aggrieved parties as the consensus reached is binding, and various communities have internal enforcement mechanisms widely accepted by the given society.

Currently, there are efforts by the legal fraternity in Kenya and other parties to enhance legal and institutional frameworks governing mediation in general. The endeavour covers the whole gamut of Alternative Dispute resolution Mechanism hence it has been labeled as Court Annexed ADR. Parties who have presented their cases to court or about to do so get into mediation under the supervision of the court. A successful mediation is then made binding through the recording of a consent in court.

This initiative is purposed to address the problem of massive backlog of cases in the courts. Mediation, with its flexibility and expeditious nature may be able to bring down the level of backlog in the Courts.

The Rules committee has conducted a national exercise to solicit views from members of the public on the steps required to bring about changes to the civil procedure incorporating mediation among other modes of ADR. The Chartered Institute of Arbitrators was contracted to draft the Court Alternative Dispute Resolution Rules in difference to its wide experience in mediation.

In collaboration with other stakeholders in various professional organizations a draft of Court Mandated Mediation Rules has been formulated by the ADR task force. In drafting the mediation rules, the task force took into account the experiences of other jurisdictions within the commonwealth.

The final draft of the ADR rules was presented to the Rules Committee on 30th November 2004. They were then proposed to be introduced through a new order XLVB of the Civil Procedure Rules under the Civil Procedure Act.

One may note in passing that the form adopted by the proposed ADR rules is quite formal and annexed to the procedures governing the conduct of cases in the High Court. Informal mediation that may not require the use of writing is not provided for. The codification of mediation rules merely reflect the concept of mediation as viewed from a western paradigm. But this is what works for commercial ventures who are the likely consumers of the envisaged mediation.

Mediation and law in Uganda

Court annexed mediation was introduced in Uganda under Commercial Court mediation Pilot Project. The rules and procedures for this project were promulgated in September 2003. The framework involves the transfer of appropriate cases to mandatory mediation in order to facilitate an early settlement of disputes.

Under the project, the parties are enjoined to refer their disputes to mediation for resolution at no extra cost to the parties. All the cases filed in the commercial Court are to be referred to a mediation session. Here, every party must indicate in their pleadings whether they consent or oppose a referral of their case to mediation. No opting out of mediation is allowed except by order of a judge of the Commercial Court.

The mediation proceedings are to be completed within 30 days of the referral, although some limited extension of that time may be granted. The agreement reached between the parties at the Mediation Session is filed in Court as the Consent Judgment in the particular case. Mediation sessions are conducted under the auspices of the Centre for Arbitration and Dispute Resolution (CADER). The mediation referral mechanism is expected to be rolled out to the other Divisions of the High Court.

The anticipated mediation process is extremely informal and is done by trained experts in the particular field of dispute (including non-lawyers) and is to last for a maximum of two days only.

Mediation and law in the USA

There are various organizations that deal with mediation in USA. The American Arbitration Association for instance offers mediation services in addition to arbitration. However, the federal policy on mediation is particularly embodied in the Administrative Dispute Resolution Act 1996 (5 U.S.C Section 571 et seq) and the Negotiated Rule Making Act of 1996 (Section 561 et seq)which encourage the use of ADR to resolve disputes regarding federal agency programs.

The administrative Dispute resolution Act recognizes explicitly that ADR has been used in the private sector for many years, often yielding faster, less contentious decisions and that ADR "can lead to more creative, efficient and sensible outcomes"( Public Law 104-320 Section 2(3) and (4))

The law emphasizes confidentiality in the context of settlement negotiations which is protected under the federal rules of evidence. The rules preclude introduction into evidence of the parties' positions during negotiations. This is an acknowledgment that parties must be able to speak candidly regarding settlement. In a word, the mediation practices in the United States are buttressed by legislation ensuring confidentiality and setting up formal institutions to provide mediation services.

The international framework for mediation

Largely, the techniques of conflict management through pacific methods under international law embrace the process of mediation. This involves an attempt to resolve the dispute by the contending parties themselves or with the aid of other entities by the use of discussion and other fact finding methods (Shaw MN, International Law, Cambridge, Cambridge University Press, 4th ed. 1997 P.717) The Charter of the United Nations does recognize this fact as it requires:

"All member states to settle the international disputes by peaceful means in such a manner that international peace, security and justice are not endangered."(Article 2(3))

Indeed, the concept of mediation itself is founded on the principles of international law. States are more often than not bound by the law to apply pacific settlement of disputes except where the use of force is authorized and merited (United Nations General Assembly Resolution 2625(XXV)).

Mediations are also offered by internationally renowned institutions all over the globe. These institutions publish mediation rules that guide the mediators and the parties in mediations and are also source of skilled mediators.

CONCLUSION

In a nutshell, the fact that mediation is increasingly becoming useful as a dispute resolution method in Kenya has been noted. This is attributable to the failure and delays in our judicial system and the technical nature of matters coming up for resolution. Mediation is more appealing than other ADR methods in that it is not new having been a key dispute resolution method in the African communal set-up.

Further, the fact mediation still operates in a legal lacuna is also highlighted. The proposed legal amendments to the Civil Procedure to introduce the Court annexed mediation are also discussed. Case studies examined painfully show that Kenya is among the few black sheep in legislating on mediation other countries having gotten over it long ago. The Ugandan legal framework on mediation especially provides good food for thought for legal reforms in Kenya.

A survival manual for law asscociates

Research shows that in many law firms, associates are the most vulnerable to lay-offs. More often than not, their production capacity is already well-known by the partners and the decision to retain or not is therefore not hard to make as is with pupils. They are also expected to justify their salary contributing to the firm's bottom line.

What does it take to survive when your next law-firm's layoff? What is an associate (or even a pupil) to do to ensure that s/he does not fail on performance in estimation of the firm decision makers? Here are dos and don'ts that I deem the essence of associate life.

Cater to the boss: Partners (and senior associates) can be eccentric, but it's the associate's job to adapt. Assimilate the habits, likes and dislike and even particularities of the people with whom you're going to be working. Such things as simple as how they like [work] presented, the font of legal briefs, whether they like stuff oral or writing, and what detail they would in your work are a must-know. Also get familiar with your bosses work schedules; know whether you're working with people who start early or stay late. For instance, my boss is an early riser and so we have to make it to office before 7 am.

Stick your neck out: In today's practice, being pro-active is not just a matter you have to lie about during interviews. It is a plus if you are the kind of lawyer who will take initiative on matters that mean business for the law firm. Associates who tend to launge in their office and wait for the office memo or buzzer to tell them what next should mind their skin. In contrast, the future belongs to those who go out and try to be more proactive in the types of assignments they're getting. For some of us, that's a natural; for others, that means getting out of your comfort zone. Here is the point, with so many things going on in a law firm, stick your neck out and look for experiences that you might feel you don't have any relevant background in. Ultimately, people are going to specialize. But early on, get whatever experience you can.

Whether you want to make partner or not, feign you do! Today's associates tend to focus on what they're doing — today – and where that's leading them. Many associates no longer hold to the idea of working hard for the firm to make partner. If that was so, the motto would be: 'Do whatever the firm requires in order to become a partner. Associates don't necessarily join firms anymore with the goal of becoming partner. This owes to the fact that the expectation of today's generation of lawyers is that they are going to hold many jobs in their lifetime. There is no problem with that notion until an associate starts taking the current job casually as a result. It is important to know that law firms want associates who are looking long term. Long term does not necessarily have to be lifetime, It could be five years or even less. But importantly, the associate's enthusiasm in what the firm does must be seen by the law firm management as that of someone in the firm for the long haul. Do it like you want to make partner tomorrow!

L-K'ers: What is your take on this article? Email your opinion now to: pmusyimi@gmail.com

A landmark in Kenyan tax law jurisprudence: Keroche Industries Case

Citation: Keroche Industries Limited versus Kenya Revenue Authority & 5 others [2007] eKLR

This case involved an application for judicial review by the applicant company, a manufacturer of wines, against various orders and decisions of the KRA.

Facts of the case

The facts were that the applicant and its predecessors applied for a license to the customs department to manufacture wines on or about 1996 and 1997 and a license was granted which classified the applicant's product under Tariff Heading 22.04. According to the applicant, they paid duty under Tariff Heading 22.04 from 1997 to 2006. That is, until a decision to change the tariff was communicated to it vide a letter dated 29^th November 2006. The decision communicated was that the Applicant's fortified wine products were wrongly classified under tariff 22.04 but should have been classified under Tariff Heading 22.06. The latter Tariff, namely 22.06 attracts a higher rate of duty than tariff 22.04 in that it attracts 60% instead of 45%.

By the same letter, the Respondents issued a tax assessment based on the new tariff 22.06 from the year 2002 to 2005. Consequently, the letter demanded from the applicants the payment of approximately Kshs. 1.1 Billion with 14 days of November 2006. This amount was without the usual penalties and therefore the actual amount due was certainly higher than the figure stipulated. Although the figure quoted included amounts in the rest of the various tax regimes, namely; Custom Excise Duty, VAT, Withholding tax and Income ax, only one global demand was sent to the applicant.

Key issues for determination

There are two key issues relevant that the court tackled ably as to deserve revisiting. One is jurisdictional competence of the court to intervene in matters where the applicant has failed to exhaust other tribunals with jurisdiction on the matter. On this point, it was submitted for the Respondents that the court ought not to have intervened in the matter because various tax tribunals could have sorted out the matter. The court however did not agree. It was the court's view that the issue should be considered from the standpoint of the rule of law. It held that while judicial review could be a collateral attack, the right of assess to court is a fundamental principle and cannot be taken away except in exceptional cases.  The present case, in the courts view, fell within the bounds of the exception. The court did not however lay down the criteria for determining when the right to access court for judicial review should or should not be denied in Kenya.

Retrospective application of tax tariff similar to ex-post facto law

The other issue worthy revisiting is whether retrospective application of Tariff is similar to ex-post facto laws. The court held that retrospective application is a Wednesbury unreasonable, irrational, oppressive, biased, discriminating, mala fides, unfair, arbitrary, and procedurally improper and abuse of power. The court, in so holding, upheld the legitimate expectation of the applicant, that it would not abruptly and unilaterally be transplanted from Tariff 22.04 which had been the basis of its business and its business plans and projections over the nine years. In particular, the court found the respondent's decision to have threatened or threatens to thwart the above legitimate expectations and the court reasoned that it must come to the defense of legitimate expectations because fair bargains ought not to be thwarted-this being a principle of fairness.

Excepts from judgment on topical issues

The court stated in conclusion:

"It seems apt to state that public authorities must constantly be reminded that ours is a limited government- that is a government limited by law-this in turn is the meaning of constitutionalism. Certainty of law is a major requirement to business and investors. Imposition of a different tariff, to that an investor contemplated when setting up an industry is reckless, irrational and unreasonable and it violates the principle of certainty and the rule of law. Such a style of decision making cannot offer a conducive business and investment climate. The courts have a role in keeping public authorities within certainty of law. To enable them to do this, the frontiers of judicial review have to expand. For now, let it suffice to state and hold that the actions and decisions of public authorities must be questioned, directed and shaped by the law and, if not, the courts must intervene. This is the essence of the decision."

 The court added on certainty of law:

"I think it is significant to stress on the ground of certainty of law as an ingredient of the rule of law because it is very easy for public authorities and bodies to overlook it in their decision making processes as has happened in this case."

The judgment is not complete without the courts statement on rule of law. It stated:

"The rule of law is the cog upon which all provisions of the constitution turn. For example, the intended tariff change has clearly been shown to have been discriminatory in its effects contrary to section 82 of the constitution. I hold that the public bodies decisions and activities should always turn on this cog as well, failing which the courts are entitled to intervene where this is overlooked, as I have done in this case."

Conclusion

The court's finding that retrospective applications of tax legislations are unenforceable as they are similar to ex-post facto laws is a relief to business and businessmen. The case stands out as an authority in that respect and promises to boost Kenya's standing as an ideal investment destination no small deal.

Need for full and frank disclosure of material facts

In litigation, situations are wont to arise where a party will of necessity have to obtain orders in lieu of service to the other party and/or inter partes hearing. Courts of law and equity  have been keen ensure that the party benefiting from such ex parte orders does not do so at undue expense of the opposite party. It is therefore settled that a party applying for ex-parte orders act uberimae fides.

 

Principle of non-disclosure of material facts

The principle of non-disclosure was stated in the well-known case of R-v-Kensington Income Tax Commissioner E.p. Princess Edmond De Polignac [1917] 1 KB 486 where Scrutton LJ referred to it as 'one which it is of greatest importance to maintain'. In that Court of Appeal of England case, Warrington LJ at page 509 said as follows:

 

"It is perfectly well settled that a person who makes an ex parte application to the court-that is to say, in the absence of the person who will be affected by that which the court is asked to do-is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure,  then he cannot obtain any advantage from the proceedings, he will be deprived of any advantage he may have already obtained by him. That is perfectly plain and requires no authority to justify it."

 

Rationale for material disclosure requirement

In Lloyds Bowmaker Ltd-v-Britania Arrow Holdings p/c (larens, third party) [1988] 3 All ER 178 Balcombe LJ rationalized the requirement of full, fair and frank disclosure thus:

 

"The rule that an ex parte injunction will be discharged if it was obtained without full disclosure has two fold purposes. It will deprive the wrongdoer of an advantage improperly obtained…But is also serves as a deterrent to ensure that persons who make ex parte applications realize that they have this duty of disclosure and of the consequence (which may include liability in costs) if they fail in that duty."

 

Application of non-disclosure principle in Kenya

In Tiwi Beach Hotel Ltd-v-Stamm [1991] KLR 658, the Court of Appeal in the appeal on a ruling of an a dismissal of opposition to injunction on grounds that the applicant had failed to make disclosure of all material facts to the application held that: when considering an averment of material disclosure, it is important that the Court is not left with a lacunae in the narrative which might be relevant to that averment. The Plaintiff in its depositions of 19/10/2007 deliberately left a lacuna on the facts of the matter by concealing from the court records its letter of 28^th July 2007 and that of the 1^st Defendant of 2^nd August 2007.

 

Further, the Court of Appeal held that it matters not upon a point of this nature being taken, whether the applicant was entitled to or that the Court would have granted the relief sought in any even, that is to say leaving aside the non-disclosure, for it is affront to the dignity and credibility of the Court that is in point. In the case, the court rejected the contention as to non-disclosure because, after examining the sequence of the events, it was unable to find that there was deliberate concealment on the part of the respondent. That cannot be said of the present case.

 

The appeal case of Owners of the Motor Vessel "Lillian S"-v-Caltex Oil (Kenya) Limited [1989] KLR 1  also dealt with the duty of applicant to make full and frank disclosure of material facts in ex-parte applications and the consequences of non-disclosure thereof. The court of Appeal held that it is axiomatic that in ex-parte proceedings there should be full and frank disclosure to the court of facts known to the applicant. And that, failure to make such disclosure may result in the discharge of any order made upon the ex-parte application.

 

Guidelines on Non-disclosure of facts

In the above case, Kwach JA (as he then was) quoted the following passage in the decision in Brink's Mat Ltd-v-Elcombe [1988] 3 All ER 188 by Ralph Gibson LJ, at page 192(f) as the law on non-disclosure. Ralph Gibson LJ in the case said as follows:

 

"In considering whether there has been relevant non-disclosure and what consequence the court should attach to any failure to comply with the duty to make full and frank disclosure, the principles relevant to the issues in these appeals appear to me to include the following. (i) the duty of the applicant is o make a full and fair disclosure of the material facts. (ii) The material facts are those which it is material for the Judge to know in dealing with the application as made; materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers. (iii) The applicant must make proper inquiries before making the application. The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had such inquiries. (iv) The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including (a) the nature of the case which the applicant is making when he makes the application (b) the order for which application is made and the probable effect of the order on the Defendant, and (c) the degree of the legitimate urgency and the time available for the making of the inquiries. (v) if material non-disclosure is established the court will be astute to ensure that a Plaintiff who obtains an ex parte injunction without full disclosure is deprived of any advantage he may have derived by that breach of duty. (vi) whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to issues which were to be decided by the judge on the application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and give careful consideration to the case being presented. (vii) Finally, it is not for every omission that the injunction will be automatically   discharged. A locus penitentiae (chance of repentance) may sometimes be afforded. The court has discretion, not withstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to continue the order."

 

Despite non-disclosure new orders may issue

However, the court may make a new order on, as stated by Glidewell LJ in Lloyds Bowmaker Ltd-v-Britania Arrow Holdings p/c (larens, third party) [1988] 3 All ER 178 at p.183, the following terms:

 

"… When the whole of the facts, including that of the original non-disclosure, are before it, (the court) may well grant such a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed." (Emphasis mine)

 

Clearly, a party will not be entitled to new order where the non-disclosures are demonstrably reeking of guilt and calculation. Such suffices as unclean hands and put a curb on the equitable discretion of the court to act in the circumstances. Also, new order will not issue if had the facts been disclosed, the Plaintiff would not have had the ex-parte orders.

 

Non-disclosure abuse of court process

The Court of Appeal in the MV Lilian S' case (supra) found that the respondent had failed to disclose to the court that their claim was being pursued by arbitration. Upholding an appeal, inter alia, on ground of the non-disclosure it found that invocation of the jurisdiction of the court ex parte in view of the non-disclosure of material facts amounted to an abuse of the process of the court.

 

Non-disclosure is want of good faith

In Mutua & others-v-Milligan & Co Ltd [1991] KLR 405 the learned Bosire J (as he then was) held that the court will exercise the power to strike out an injunction for want of good faith where it has evidence that the appellant came to court and obtained ex-parte orders without full disclosure of material facts essential for the just determination of the matter, or where the facts relied upon are clearly false.

 

Recent case on non-disclosure in Kenya

The need for non-disclosure of material facts was also emphasized by the High Court in Republic versus Kenya National Federation of Cooperatives Limited Ex parte Communication commission of Kenya [2005] 1 KLR 242. The facts were that on 25^th November 2004, the Kenya National Federation of Cooperatives Limited (KNFC) filed an ex-parte application for leave to apply for judicial review orders against the Communication Commission of Kenya (CCK). It also sought that the grant of leave operate as a stay of the performance for operation of the license for the Global Service Mobile (GSM) issued to Econet Wireless Kenya Limited by the CCK pending the hearing and determination of the application which concerned the issuance of the license.

 

The court granted the orders sought ex parte and directed that Econet Wireless Kenya Limited (EWK) be made a party to the application. The EWK then applied for orders that the stay and the leave be discharged. The application was principally based on the ground of non-disclosure of material facts by the KNFC.

 

KNFC had failed to disclose facts that would appear to be material especially on matters relating to correspondences with CCK and its negotiations with EWK. Whether this was deliberate, the court did not seek to establish.

 

The High Court in discharging the leave and the stay held that it is essential that parties who seek leave ex-parte to move for judicial review to appreciate that they have a duty to make a full disclosure of all potentially material matters to the court. It was the court's view that whether or not the fact subject of non-disclosure is of sufficient materiality to justify or require immediate discharge of the order without examination of merits depended on the importance of the fact to the issues to be decided by the judge on the application.

 

The facts not disclosed do not seem to have been capable of dissuading the court to deny the leave had they been disclosed. However, the fact of lack of innocence on the part of the applicants swayed the court's discretion in discharging the ex-parte leave.

 

In the case, it was submitted on behalf of KNFC that the court could still maintain the ex parte orders granted if it found that despite the non-disclosures, the leave and stay could still be properly granted had they been disclosed or availed to the Court. That was one of the aspects considered in the Brink Mars case (supra). The learned judge, Ibrahim J, held that the non-disclosure was deliberate and calculated and that had the information undisclosed been disclosed to him, he would not have possibly granted the order of stay. Ibrahim J, saying he was lost because of the non-disclosure further stated at page 266 (Para 20):

 

"The Court must insist on strict compliance with the rule pertaining to non-disclosure in order to afford protection to the absent parties at the ex parte stage."

 

Non-disclosure in leave for judicial review application

In Kenya, the requirement for full and frank disclosure in application for leave to apply for judicial review is based on the fact that such application is, by virtue of order 53 of the Civil Procedure Rules, made ex-parte. In the above KNFC case, the court referred to a number of authorities on necessity making full disclosures in applications for leave for judicial review.  In R-v-Metropolitan Police Force Disciplinary Tribunal ex-parte Lawrence (1999) EWHC Admin 588, the High Court of England observed :

 

"… [I]t is essential that parties who seek leave to move to judicial review should appreciate that they have a duty to make full and frank disclosure of all potentially material matters to the court …"

 

In the authoritative Book "Judicial Review Handbook" 3^rd edition By Michael Fordham, an essential and must have text on judicial review, the author at page 352 says:

 

"21.5 Claimant's duty of Candour

A claimant for permission [read leave] is under an important duty to make full and frank disclosure to the court of all material facts and matters. It is especially important to draw attention to matters which are adverse to the claim, in particular: (1) any statutory restriction on the availability of judicial review; (2) any alternative remedy; (3) any delay or lack of promptness and so need to apply for an extension of time."

 

In R-v-Leeds City Council, Ex P Hendry (1994) Admin LR 444D in which Latham J observed:

"It is of fundamental importance that applications for judicial review should be made with full disclosure of all material available to the claimant … this is a case which I can properly in order to sent a message to those who are making applications to this court reminding them of their duty to make full disclosure: failure to do so will result in appropriate cases in the discretion of the court, being exercised against (a claimant) in relation to the grant of (a remedy)".

These above quotations demonstrate that the requirement for full and frank disclosures by applicants in judicial review is as stringent as in all other ex-parte applications. In deed,  the requirement for full and frank disclosure apply in other ex parte application in addition of injunctions and leave to apply for judicial review. One can include such other applications as ex parte application to serve out of jurisdiction, application for substituted service and ex parte application for arrest before judgment among others. In these other case,  cases, the duty for full disclosure is no less stringent.

 

Conclusion

Undoubtedly, ex-parte orders are inevitable in civil litigation. The best and recommended policy is to be careful in drafting to ensure full disclosures are made. It is also important to remind clients of the principle and encourage them to let on all the facts of the matter even if they deem the same 'irrelevant'.

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