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ELCPartially AllowedNot stated in the judgment· [2015] KEELC 132 (KLR)

Republic v County Government of Narok & another Ex-Parte Paul Tapukai Merbarne & another [2015] KEELC 132 (KLR)

Environment & Land Court
22 October 2015
MSMUNYAO SILA
1,391 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment & Land Court allowed five nominees to join a case challenging their appointments, holding they deserved to be heard.

What this practically means

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Executive summary

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This was a Chamber Summons application dated 21st September 2015 by five persons who had been nominated for appointment as members of the Narok County Land Management Board, seeking to be enjoined as interested parties to a judicial review motion. The substantive judicial review suit, brought by ex-parte applicants against the Chairman of the National Land Commission, sought prohibition against the recruitment and/or gazettment of the Board as constituted, prohibition against acting on the Narok County Government's nominations, and mandamus compelling fresh, transparent interviews. The ex-parte applicants opposed the joinder through a preliminary objection and grounds of opposition, arguing the application was defective in form (Chamber Summons instead of Notice of Motion), supported by a defective affidavit, and would serve no useful purpose. Munyao Sila J held that although the application should have been by Notice of Motion under Order 51, the defect was not fatal since no prejudice was caused, the application having been heard in open court. On the affidavit, the court found that even if the jurat placement was a defect, Order 19 Rule 7 permits acceptance of affidavits with irregularities in form. On the substance, the court found the applicants had a clear and direct interest, as the suit sought to nullify their nomination, and they deserved to be heard as the most affected parties. The application was allowed, the five applicants were enjoined as interested parties with leave to file affidavits within 7 days, and no orders were made as to costs.

Key legal issues

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01

Whether the Chamber Summons format was fatally defective

Holding

The application ought to have been by Notice of Motion, but the defect was not fatal as no prejudice was suffered since it was heard in open court.

Reasoning

Order 51 provides that all applications to the court shall be by motion heard in open court unless otherwise directed. The rules under which the application was brought do not provide for Chamber Summons, so the application as drawn was defective. However, since the application was actually heard in open court as a Notice of Motion should be, the ex-parte applicants suffered no prejudice, and the court declined to dismiss it on that account, consistent with the overriding objective.

p. 3
02

Whether the supporting affidavit was incompetent due to the jurat defect

Holding

The affidavit was acceptable; any defect was an irregularity in form which the court may overlook under Order 19 Rule 7.

Reasoning

The complaint was that the final 'what is deponed is true' paragraph stood alone on a page with only the deponent's signature. The court held that this changes nothing in the affidavit and does not alter the mode of response by a respondent. Even if a defect existed, Order 19 Rule 7 permits the court to receive an affidavit notwithstanding any irregularity in form or technicality, so the submission to strike out the affidavit failed.

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03

Whether the nominated persons should be enjoined as interested parties

Holding

Yes; they have a clear interest as the persons whose nomination is under challenge and may have material to assist the court.

Reasoning

The five applicants are the persons nominated to sit on the Narok County Land Management Board, and the judicial review suit seeks to nullify their nomination. They will be the most affected by the outcome, have shown an interest to be heard, and may have material to assist the court in arriving at a just determination. The court held they are necessary parties and granted them leave to file affidavits within 7 days.

p. 3

Legal principles established

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  • A procedural defect such as bringing an application by Chamber Summons instead of Notice of Motion is not fatal where no prejudice is caused to the other side.
  • The court may accept an affidavit notwithstanding defects or irregularities in form under Order 19 Rule 7 of the Civil Procedure Rules.
  • Persons whose nomination is sought to be nullified in judicial review proceedings are necessary parties who deserve to be heard.

Court orders

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  1. 1.The five applicants be enjoined to the suit as interested parties
  2. 2.Leave granted to the interested parties to file affidavits within 7 days, to be filed and served
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A(1)(2)(3) and 3A
  • Civil Procedure Rules, 2010Order 1 Rule 10(1) and (2)
  • Civil Procedure Rules, 2010Order 19 Rule 7
  • Civil Procedure Rules, 2010Order 51 Rule 1 and 3
  • Constitution of Kenya, 2010Article 159
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act, 2010 and Order 1 Rule 10(1) and (2) and Order 51 Rule 1 and 3 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v County Government of Narok & another Ex-Parte Paul Tapukai Merbarne & another [2015] KEELC 132 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/132/eng@2015-10-22

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