Automated Summary
Key Facts
The ex parte applicants (Daniel Chelagat t/a Chemchem Distributors and Sharon Chebii t/a Kaburwo Bar) sought judicial review of their denied liquor licence renewals. The Respondent (Baringo North Sub-County Alcoholic Drinks Regulation Committee) argued the applicants failed to exhaust internal dispute resolution mechanisms under the Fair Administrative Actions Act (FAAA) and Baringo County Alcoholic Drinks Control Act 2014. The court found the internal review process was unavailable to the applicants as the decision to deny their renewals was communicated 40 days late (served 24 December 2020 despite being dated 14 September 2020), rendering the 14-day review window inoperative. The applicants were therefore exempt from the exhaustion requirement.
Issues
- The court examined the legal standard for determining if an internal dispute resolution mechanism is 'available and effective' as per Mohamed Ali Baadi v. Attorney General [2018] e-KLR. It concluded that the 40-day delay in serving the refusal decision rendered the review process ineffective, as the applicants could not pursue it without impediment. This led to the finding that the exhaustion requirement did not apply.
- The Respondent argued the applicants' case was an abuse of the court process for not exhausting the Baringo County Act's review and appeal procedures. The court rejected this, citing the Respondent's procedural failures and public policy principles, including the 'oxygen principle' under section 1A of the Civil Procedure Act, to dismiss the preliminary objection.
- The court addressed whether the ex parte applicants could bypass the internal dispute resolution mechanisms (sections 17 and 18 of the Baringo County Act) due to the Respondent's delayed communication of the licence renewal refusal (served 40 days after the decision was made). The key question was whether these mechanisms were 'available and effective' under the Fair Administrative Actions Act 2015, considering the time-bar and the Respondent's failure to adhere to statutory timelines. The court also evaluated if exceptional circumstances justified exemption from the exhaustion requirement under section 9(4) of the FAAA.
Holdings
The court dismissed the Respondent's preliminary objection, finding that the internal dispute resolution mechanism under section 17 of the Baringo County Alcoholic Drinks Control Act 2014 was not available to the ex parte applicants. The decision was time-barred due to the Respondent's failure to serve the refusal notice within the stipulated 14-day period. The court ruled that the applicants were justified in seeking judicial review without exhausting internal mechanisms, as the alternative forum was ineffective. The objection was deemed unwarranted and dismissed with costs to the ex parte applicants.
Remedies
The court dismissed the preliminary objection raised by the respondent, finding it unwarranted, and ordered that the costs be paid to the ex parte applicants.
Legal Principles
The court applied the principle that no person should benefit from their own wrongdoing, dismissing the respondent's preliminary objection based on their failure to communicate the refusal decision within the stipulated 14-day period. It also emphasized that the exhaustion of internal remedies is only required if the alternative forum is accessible, affordable, timely, and effective, citing Mohamed Ali Baadi & Others v. Attorney General [2018] e-KLR. The ruling further held that the respondent's litigation strategy was contrary to public policy, as it unnecessarily increased costs for litigants.
Precedent Name
- Evans Chelagat Yatich v. Baringo North Sub-County Alcoholic Drinks & Another
- Republic v. Kenya Revenue Authority, Commissioner Ex parte Keycorp Real Advisory Limited
- Mohamed Ali Baadi & Others v. Attorney General & 11 Others
- Teresa Cheruiyot T/A Cool Shade Bar & 4 Others v. County Chairman Liquor Licensing Committee-Uasin Gishu & 4 Others
- Moses Kuria Njuguna v. County Government of Kiambu
Cited Statute
- Civil Procedure Act (Cap 21) Laws of Kenya
- Fair Administrative Actions Act No 4 of 2015
- Baringo County Alcoholic Drinks Control Act 2014
Judge Name
J M Bwonwong'a
Passage Text
- "A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality]...a remedy is considered available only if the applicant can make use of it in the circumstances of his case."
- "(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution."
- "It is crystal clear that a point of law has arisen which is whether the internal resolution mechanism that is provided for in section 17 (1) of the Baringo County Alcoholic Drinks Control Act 2014 was available and effective...the ex parte applicants were time barred."