Republic v Attorney General &another;Ex-parte Applicants:Jude Njomo & another [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi
Category
Civil
Judge(s)
Hon. P. Nyamwea
Judgment Date
October 19, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the 2020 eKLR case summary of Republic v Attorney General & another; Ex-parte Applicants Jude Njomo & another. Delve into the key legal insights and implications.

Case Brief: Republic v Attorney General &another;Ex-parte Applicants:Jude Njomo & another [2020] eKLR

1. Case Information:
- Name of the Case: Republic v. The Attorney General & Energy and Petroleum Regulatory Authority & Others
- Case Number: Judicial Review Application No. 72 of 2020
- Court: High Court of Kenya
- Date Delivered: October 19, 2020
- Category of Law: Civil
- Judge(s): Hon. P. Nyamwea
- Country: Kenya

2. Questions Presented:
The central legal issues the court must resolve include:
- Whether the High Court has jurisdiction to entertain the application for judicial review filed by the ex parte Applicants against the 2nd Respondent.
- Whether the dispute between the ex parte Applicants and the Oil Marketing Companies should be resolved through alternative dispute resolution mechanisms as prescribed by relevant statutes.

3. Facts of the Case:
The ex parte Applicants, Hon. Jude Njomo and Anthony Kuria, represent the Kenapede Association, which comprises retailers and dealers of petroleum products in Kenya. They filed a Notice of Motion Application seeking an order of Mandamus to compel the Energy and Petroleum Regulatory Authority (2nd Respondent) to enforce compliance with petroleum pricing regulations established under the Petroleum Act 2019 and the Energy Act 2019. The Applicants alleged that Oil Marketing Companies were imposing illegal charges and failing to remit the prescribed retail margin of Kshs. 4.14 per litre to dealers. Despite notifying the 2nd Respondent of these violations, they claimed the authority failed to act.

4. Procedural History:
The 2nd Respondent filed a Notice of Preliminary Objection, arguing that the High Court lacked jurisdiction to hear the case, asserting that the dispute should be resolved through the Energy and Petroleum Tribunal as mandated by the Energy Act and the Petroleum Act. The High Court directed that the Preliminary Objection be heard first, leading to written submissions from both parties regarding jurisdiction and the appropriateness of the judicial review application.

5. Analysis:
- Rules: The court considered several statutes, including sections of the Energy Act 2019 and the Petroleum Act 2019, which establish the Energy and Petroleum Tribunal as the appropriate forum for resolving disputes between licensees in the petroleum sector.
- Case Law: The court referenced *Owners of the Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd* [1989] KLR 1, which established that jurisdiction is paramount, and if a court lacks jurisdiction, it cannot proceed with the case. Additionally, the court cited *Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd* (1969) EA 696, emphasizing that a preliminary objection must be a pure point of law.
- Application: The court found that the dispute raised by the ex parte Applicants related to commercial and contractual relationships between licensees, which should be addressed by the Energy and Petroleum Tribunal. The court determined that the Applicants had not exhausted the alternative dispute resolution mechanisms available under the relevant statutes, thereby lacking jurisdiction to hear the case.

6. Conclusion:
The court upheld the 2nd Respondent's Preliminary Objection, ruling that the ex parte Applicants' Notice of Motion application was struck out for lack of jurisdiction. The court emphasized the need for parties to utilize the established dispute resolution mechanisms before seeking judicial review.

7. Dissent:
There were no dissenting opinions noted in this ruling.

8. Summary:
The High Court of Kenya ruled in favor of the 2nd Respondent, determining that the ex parte Applicants' application for judicial review was improperly before the court due to lack of jurisdiction. The court's decision underscores the importance of exhausting statutory dispute resolution mechanisms before resorting to judicial review, reinforcing the procedural requirements outlined in the Energy Act and Petroleum Act. The ruling serves as a significant precedent regarding the jurisdictional boundaries of the High Court in matters involving regulatory authorities and commercial disputes in the petroleum sector.

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