purpose, as set out in ex-parte Preston, reneging without adequate justification on an otherwise
lawful decision, on a lawful promise or practice adopted towards a limited number of individuals. I
further find as in the case of R (Bibi) vs. Newham London Borough Council [2001] EWCA 607, [2002]
WLR 237, that failure to consider a legitimate expectation is a failure to consider a relevant
consideration and this would in turn call for the courts intervention in assuming jurisdiction and
giving the necessary relief.”
72. It was contended that the failure to consider the applicant’s application was as a result of
the defect in the system used by the 1st respondent. The applicant speculated that this must
have been the reason why his first application was returned undelivered. It is, however upon
the ex parte applicant to satisfy the Court that the orders sought are merited and the Court
cannot be satisfied where the application is based on speculation and conjecture.
73. This burden and standard was expounded in Kuria & 3 Others vs. Attorney General [2002] 2
KLR 69 where it was held:
“A prerogative order is an order of serious nature and cannot and should not be granted lightly. It
should only be granted where there is an abuse of the process of law…an order of prohibition cannot
also be given without any evidence…”
74. In this case I am not satisfied that the failure of the delivery of the applicant’s application
was necessarily due to the defect in the 1st respondent’s server. It could have been due to a
myriad of problems which may or may not have been attributable to the 1st respondent. To
determine the real cause, it might be necessary to call for evidence and that is outside the
scope of a judicial review court.
75. The Respondent contended that the decision whether or not to grant judicial review orders
being discretionary, the Court ought to consider the effect of setting aside the entire process
on the communication sector as against the interest of the individual who if properly advised
may have recourse in other legal proceedings if his claim is merited. In support of the
submissions, the Respondent relied on Republic vs. Judicial Service Commission ex parte
Pareno [2004] 1 KLR 203 at 219; Halsbury’s Law of England 4th Edn. Vol. II page 805 para
1508 and R vs. Kenya National Commission on Human Rights exp Uhuru Kenyatta [2010]
eKLR. It is true that the decision whether or not to grant orders of judicial review is
discretionary and the Court may well take into account the circumstances of the case and
decline to grant the same even where merited. However, it is my view that the determinant
factor in granting judicial review is not the circumstances divorced from the grounds for
judicial review. Such circumstances though relevant cannot be the sole basis for denial of an
otherwise merited relief. In Stephen S. Pareno vs. Judicial Service Commission of Kenya
[2014] eKLR, which was an appeal from Republic vs. Judicial Service Commission ex parte
Pareno (supra), the Court of Appeal expressed itself as follows:
“We have on our own, considered the above findings in the light of the facts and principles of law
applicable and we find that the appellant was genuinely aggrieved not only by the learned trial
Judge’s reasoning but also by his digression from the core business he had been invited by the
appellant to adjudicate upon which was namely to issue an order of certiorari by way of Judicial
review. Instead he digressed into other extraneous issues which according to the appellant were
calculated to justify the withholding of a relief which had in fact crystallized in his favour… We
however agree with the finding of the learned trial Judge that the relief of judicial review by way of