Abercrombie & Kent Limited & another v Republic [1996] KECA 174 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that if you're unhappy with a judge granting judicial review permission, you must appeal directly rather than trying to have the case thrown out.
What this practically means
#Executive summary
#Key legal issues
#Availability of a procedure to strike out a judicial review notice of motion and set aside ex parte leave
The Court of Appeal doubted the availability of the 'strange procedure' of filing a notice of motion within a notice of motion to strike out the latter, and held the Judge was right to refuse to strike out Oloololo's motion.
Order 53 contains no provision for striking out a motion filed under it. A party aggrieved by an ex parte grant of leave has an express right of appeal as of right under Order 42 Rule 1(ee) against orders made under all provisions of Order 53. The second interested party did not exercise that right, choosing instead an unavailable procedure. While a judge may have inherent jurisdiction to set aside wrongly granted ex parte leave, the court declined to decide that question since the statute provides an appeal.
Effect of a wrongful ex parte grant of leave on the subsequent notice of motion
A wrongful ex parte grant of leave is not itself a ground for striking out the notice of motion; objections may be raised at the hearing of the motion.
The High Court Judge had held that even if the ex parte grant of leave was wrongful, that did not justify striking out the notice of motion or setting aside the leave, since those matters could be raised again at the hearing of the motion. The Court of Appeal agreed that he was probably right on that view, affirming the ruling below on that basis as well.
Legal principles established
#- A party aggrieved by an ex parte grant of leave to apply for judicial review has a right of appeal as of right, without leave, under Order 42 Rule 1(ee), and should pursue that remedy rather than a motion to strike out the notice of motion.
- Order 53 of the Civil Procedure Rules makes no provision for striking out a notice of motion filed thereunder.
- Even if an ex parte grant of leave is wrongful, that is not a ground for striking out the notice of motion; such matters may be raised at the hearing of the motion itself.
Court orders
#- 1.Appeal dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Civil Application No. 362 of 1994
- Jurisdiction invoked
- Right of appeal under Order 42 Rule 1(ee) of the Civil Procedure Rules from orders made under Order 53
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abercrombie & Kent Limited & another v Republic [1996] KECA 174 (KLR)", Case Analysis (1996). Civil Appeal No. 195 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/174/eng@1996-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.