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

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 & 2 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 before the court were whether the court had jurisdiction to hear the application for judicial review and whether the ex parte Applicants were entitled to compel the Energy and Petroleum Regulatory Authority (the 2nd Respondent) to perform its regulatory duties regarding compliance with petroleum pricing regulations.

3. Facts of the Case:
The ex parte Applicants, Hon. Jude Njomo and Anthony Kuria, acting as officials of the Kenapede Association, filed an application seeking an order of Mandamus to compel the 2nd Respondent to enforce petroleum pricing regulations. The Kenapede Association represents retailers and dealers in the petroleum industry, and their grievance arose from Oil Marketing Companies allegedly violating price margin regulations established by the 2nd Respondent. The Applicants claimed that these companies imposed illegal charges, undermining their rights and interests. Despite notifying the 2nd Respondent of these violations, they alleged a lack of action from the regulatory body.

4. Procedural History:
The 2nd Respondent filed a Preliminary Objection arguing that the court lacked jurisdiction to hear the case, asserting that the matter was a commercial dispute under the Petroleum Act and should first be resolved through the Energy and Petroleum Tribunal. The court directed that the Preliminary Objection be heard first. The ex parte Applicants countered that the case pertained to the regulatory failures of the 2nd Respondent and not merely a commercial dispute. After considering the arguments, the court ruled on the Preliminary Objection.

5. Analysis:
Rules:
The court considered several statutory provisions, including:
- Energy Act No. 1 of 2019: Sections 23(5) and 36, which mandate that disputes should be referred to the Energy and Petroleum Tribunal.
- Petroleum Act No. 2 of 2019: Sections 117(5) and (6), which outline the jurisdiction of the Tribunal over disputes involving licensees.
- Fair Administrative Action Act No. 4 of 2015: Section 9(2), which requires the exhaustion of alternative remedies before seeking judicial review.

Case Law:
The court referenced the case of Owners of the Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd [1989] KLR 1, which established the principle that a court must determine its jurisdiction before proceeding. The court also cited Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd (1969) EA 696, explaining that a preliminary objection must be a pure point of law and not require factual determination.

Application:
The court concluded that the issues raised by the ex parte Applicants were indeed disputes between licensees under the Petroleum Act. The court determined that it lacked jurisdiction to hear the application without first exhausting the alternative remedies provided under the Energy and Petroleum Act. The court emphasized that the regulatory authority had a statutory duty that could be challenged through the established tribunal, and judicial review was a remedy of last resort.

6. Conclusion:
The court upheld the 2nd Respondent’s Preliminary Objection, ruling that the ex parte Applicants' application was struck out for lack of jurisdiction. The court noted the necessity for parties to utilize the available alternative dispute resolution mechanisms before approaching the High Court.

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

8. Summary:
The High Court of Kenya ruled in favor of the 2nd Respondent, emphasizing the importance of exhausting alternative remedies before seeking judicial review. This case underscores the procedural requirements for addressing disputes in the regulatory context of the petroleum industry and reinforces the principle that judicial review is a remedy of last resort. The decision highlights the court's commitment to upholding statutory frameworks for dispute resolution in administrative matters.

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