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Court of AppealAllowedCivil Appeal (ELC) - Makueni ELC Misc. App. No. 8 of 2017 appeal to Court of Appeal· [2023] KECA 840 (KLR)

King’ola v Wambugu & 2 others (Civil Appeal 86 of 2018) [2023] KECA 840 (KLR)

Court of Appeal of Kenya
7 July 2023
HOHannah OkwenguKLDr. K. I. LaibutaJMJ. Mativo
3,187 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that documents filed when seeking judicial review permission continue to support your later court application, so missing references won't kill your case.

What this practically means

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Executive summary

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The appellant obtained leave from the Environment and Land Court at Makueni (Mbogo, J.) to seek certiorari and prohibition against orders of the Senior Resident Magistrate at Kilungu in RMCC No. 31 of 2017 concerning burial disputes over land parcels Kajiado/Kaputiei/2178 and 4919. His substantive notice of motion, however, was not accompanied by a fresh statutory statement or verifying affidavit, and Mbogo, J. dismissed it on January 18, 2018 as fatally defective, holding that the documents filed in support of the summons for leave had become spent upon the grant of leave. On appeal, the Court of Appeal (Okwengu, Laibuta and Mativo, JJA) framed two issues: whether the leave-stage documents were spent, and whether the motion was fatally defective. The court held that order 53 of the Civil Procedure Rules is a self-contained code, that general provisions such as order 51 rule 4 cannot be used to test the validity of judicial review motions, and that the statutory statement and verifying affidavit filed at the leave stage continue to support the substantive motion and are not spent. It further held that the minimum formal requirements of order 53 were met, the mandatory service requirements of rules 3(3), 4(1) and 7(1) were satisfied, and any infraction in not referencing the documents on the face of the motion was an excusable technicality under article 159(2)(d) of the Constitution. The court approved the High Court decisions of Nyamu, J. and Odunga, J. on the formal requirements of judicial review applications. The appeal was allowed, the judgment of the ELC set aside, with no orders as to costs.

Key legal issues

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01

Whether documents filed at the leave stage are spent upon grant of leave

Holding

No - the statutory statement and verifying affidavit filed with the summons for leave continue to support the substantive motion and were not spent.

Reasoning

The court noted that the statutory statement set out the prayers sought in the motion and that the verifying affidavit deposed that it was made in support of both the application for leave and the substantive motion. Since the documents evidenced the appellant's intention to rely on them at both stages, and judicial review is a special procedure under order 53, the judge erred in holding them spent.

p. 4
02

Whether the motion was fatally defective for not referring to the supporting documents

Holding

No - the motion met the minimum formal requirements of order 53, all mandatory service requirements were satisfied, and any infraction was an excusable technicality.

Reasoning

The court observed that the grounds appeared on the face of the motion and the statement and affidavit showed the intention to rely on them. The requirements of order 53 rules 3(3), 4(1) and 7(1) were met: all parties were served, participated, the documents were served and replied to, and copies of the impugned orders were annexed. Article 159(2)(d) cured the procedural infraction, so the motion was not fatally defective.

p. 4
03

The applicability of general Civil Procedure Rules to judicial review

Holding

Judicial review under order 53 is a special proceeding governed by its own self-contained code; order 51 rule 4 cannot be the basis for testing the validity of order 53 motions.

Reasoning

Relying with approval on Ole Keiwua v Yash Pal Ghai, the court reiterated that order 53 proceedings derive their force of law from the Law Reform Act, are neither civil nor criminal, and are neither an action nor a suit. Accordingly, general civil procedure provisions do not apply to judicial review in the same way as in ordinary civil proceedings.

p. 4

Legal principles established

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  • Order 53 of the Civil Procedure Rules is a self-contained code governing judicial review proceedings; ordinary Civil Procedure Rules provisions such as order 51 rule 4 cannot be used to test the validity of judicial review motions.
  • The statutory statement and verifying affidavit filed in support of a summons for leave to apply for judicial review also support the subsequent substantive motion and are not spent upon the grant of leave; a motion need not expressly refer to them.
  • Failure to refer on the face of a judicial review motion to the supporting statement and verifying affidavit is a procedural technicality excusable under article 159(2)(d) of the Constitution.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the ELC at Makueni (C. G. Mbogo, J.) dated January 18, 2018 set aside
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 53 rules 1(2), 3(3), 4(1), 7(1)
  • Civil Procedure Rules, 2010Order 51 rule 4
  • Civil Procedure ActSection 81
  • Law Reform ActSection 9
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Environment and Land Court Act, 2011Section 26
  • Magistrates' Courts Act, 2015Section 9
  • Public Health ActNot specified
  • Interpretation and General Provisions ActDefinition of 'action'

Cases cited (11)

  • M. M. Ole Keiwua & J. V. Odera Juma v Yash Pal Ghai
    [2002] eKLR
  • R. v. Communications Commission of Kenya
    Civil Appeal No. 175/2002
  • The Commissioner of Lands v Kunste Hotel
    CA 234/95
  • Walter Odhiambo v. Registrar of Trade Unions
    HC Misc. 210/89
  • Sutter vs. Scheepers
    1932 AD 165
  • Dr Arthur Nwankwo and Anor v Alhaji Umaru Yaradua and Ors
    [2010] LPELR 2109 (SC)
  • Republic v Land Disputes Tribunal Court Central Division and another ex parte Nzioka
    [2006] 1 EA 321
  • Republic v Chief Magistrates Court Thika & another Ex-Parte Applicant Joseph Kamunya Kinuthia
    [2016] eKLR
  • Josephine Wambui Mwangi v Michael Mukundi Ngugi
    [2021] eKLR
  • Mwala Land Disputes Tribunal & Another v Kiilu Mathuva & 3 Others; ex parte Kyengo Mathuva
    [2006] eKLR
  • HC Misc. App. No. 41 of 2014
    unreported
On appeal from
Environment and Land Court at Makueni
ELC Misc. App. No. 8 of 2017
Jurisdiction invoked
First appellate jurisdiction over the Environment and Land Court (superior-court appeal); no specific constitutional or statutory provision is quoted in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "King’ola v Wambugu & 2 others (Civil Appeal 86 of 2018) [2023] KECA 840 (KLR)", Case Analysis (2023). Civil Appeal (ELC) - Makueni ELC Misc. App. No. 8 of 2017 appeal to Court of Appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/840/eng@2023-07-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.