Luca Rubini’s Post

EXHAUSTION DOCTRINE (ELC 101) Parliament has, through statute, established other primary adjudicatory bodies, the court should let those primary adjudicatory bodies exercise their primary jurisdiction, and the court should only exercise appellate jurisdiction. This was the principle emphasized by the Court of Appeal in Kibos Distillers Limited & 4 others v Benson Ambuti & 3 others [2020] eKLR.  Simply put, This doctrine of exhaustion requires parties to exhaust the internal dispute mechanisms when a dispute arises and only come to court when all else fails and as a last resort. The reason why the doctrine of exhaustion is held in deference is because of the right to access to justice. First, it promotes alternative dispute resolution mechanisms. Secondly, it reduces the litigation in our courts and thirdly it affords the parties an additional layer of forum where the parties can air their grievances. That expands the right to access to justice. 

Kendall Mutton and Jena Dobie taking us on a journey over the next 5 weeks in the lead-up to the introduction of the Administrative Review Tribunal. Watch this space for the key things you need to know about how this critical administrative review body is about to change... #AdministrativeReviewTribunal #ART

On 14 October 2024, the Administrative Appeals Tribunal (AAT) will be replaced by the Administrative Review Tribunal (ART). There are substantial legal and structural changes to the ART marked as ‘the most important reform of the federal system of administrative review for decades’. In this article, we provide an overview of why the changes are occurring and what they will mean. https://ow.ly/OAor50TjFhF

What is the difference between a renewal application and an appeal? In the case of MWEENE PHIGEN VS MWENYI MUNGANDI ZMCA 142, the honourable court stated that,  "In a renewal, the matter is being heard afresh. We are not concerned with what transpired in the court below. In the same veiw, the parties cannot refer to what was or transpired in the court below. Therefore, it behoves me to state that whatever new aspects the 1st repondent has a grievance with in the matter before this court, they cannot at this stage be dismissed. This is so because the application is a renewed one, and therefore, new material does not offend  the Rules of Court. If it were an appeal, on the other hand, no new aspects can be introduced." The above case also guides Counsel on which rules one must use to raise preliminary issues. You must go by Order 33 Rule 3 read together with Order 14A of the Whitebook. Enjoy Your Weekend!

Some contend that the SC must continue granting leave to appeal to correct ‘bad law’ at the high-court level. However, this reasoning is fundamentally flawed. Indeed, if we accept that the problem truly does lie with the high courts, the solution to such ‘bad law’ is not to widen the proverbial road by adding more judges but to address the problem at the high-court level.--- So the writer prefers to suggest that instead of increasing the numbers , effort be made to reform the present infrastructure mainly at the high court levels.?

All the best to the applicants writing the Jurisprudence Exam this week! Read about the pathway to registering with the College here: https://lnkd.in/eAKvGENx

A timely decision

This article explores the application of Sections 43 and 44 of the Courts of Judicature Act (CJA) 1964, focusing on the Court of Appeal’s decision in 𝘚𝘪𝘭𝘷𝘦𝘳 𝘊𝘰𝘯𝘤𝘦𝘱𝘵 𝘚𝘥𝘯 𝘉𝘩𝘥 𝘷 𝘉𝘳𝘪𝘴𝘥𝘢𝘭𝘦 𝘙𝘢𝘴𝘢 𝘋𝘦𝘷𝘦𝘭𝘰𝘱𝘮𝘦𝘯𝘵 𝘚𝘥𝘯 𝘉𝘩𝘥.  Sections 43 and 44 of CJA regulate how and where parties may apply for interim relief during appellate proceedings, but varying interpretations have sparked a debate over whether the Court of Appeal has original jurisdiction in such matters. Given the varying interpretations, there is a need for the Court of Appeal to re-examine the previous cases, and provide clarity on these provisions. To read the full analysis by Tan Sri Cecil Abraham, Dato’ Sunil Abraham and Muzalifah Shabudin, please see the attached article or visit: https://lnkd.in/gskpqcVV. 

More on the matter, and why K.L. v. X (C-715/20) is such a relevant judgment. Check out Fien Van Reempts piece on the issue: https://lnkd.in/dQbdbJuv

New: 'The EFTA Court: Developing the EEA over Three Decades' A collection of essays, written by members of the Court and external experts, reviewing its successes, shortcomings, and future development https://bit.ly/4dJdKs3 #EuropeanLaw #ConstitutionalLaw