Barema & Ors v Attorney General (Miscellaneous No. 0160 of 2010)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The High Court held that an application seeking orders of mandamus, prohibition or certiorari may properly be brought by way of notice of motion under the Judicature (Judicial Review) Rules 2009. A preliminary objection that the matter should have been commenced by plaint was overruled. The court ruled that applicants seeking mandamus were entitled to proceed by judicial review application rather than by plaint.

Outcome

Preliminary objection dismissed; matter set down for full hearing on the merits

Facts

The applicants, widows and children of a deceased pensioner, sought judicial review seeking declarations that the respondent's withholding of their late husband/father's pension, gratuity and other entitlements was illegal and discriminatory. They sought orders compelling payment of accumulated pension, gratuity and allowances, an order of mandamus, and monetized arrears. The respondent through counsel stated it had never refused to pay and that the Ministry of Public Service was responsible for processing payments. The respondent raised a preliminary objection that there was no decision to review and that the matter should have been brought by plaint rather than by judicial review.

Issues

1. Whether the application was competent or should have been brought by plaint
2. Whether there was a decision for the court to review
3. Whether the applicants properly invoked the court's judicial review jurisdiction under the Judicature (Judicial Review) Rules 2009

Orders

• Preliminary objection overruled.
• The applicants are entitled to bring the application by way of Notice of Motion.
• It was not necessary for the applicants to file a plaint.
• The matter requires a full hearing to determine whether the application has merit.

Rules and key headnotes

Legislation cited (13)

• Constitution Article 254
• Constitution Article 50
• Constitution Article 42
• Judicature (Amendment) Act s.3
• Judicature (Judicial Review) Rules 2009 Rule 3
• Judicature (Judicial Review) Rules 2009 Rule 4
• Judicature (Judicial Review) Rules 2009 Rule 6
• Judicature (Judicial Review) Rules 2009 Rule 7
• Judicature (Judicial Review) Rules 2009 Rule 8
• Judicature Act s.41
• Judicature Act s.42
• Judicature Act s.42(1)(b)
• Pensioners Act

The original judgment as reported. Read the original PDF before relying on any passage.