Republic v Principal Magistrate’s Court Kerugoya,Central Land Disputes Tribunal & Tabitha W. Muriuki Ex-Parte Nancy Wathiba Kimoo (Judicial Review 20 of 2013) [2015] KEELC 824 (KLR)
The bottom line
#The High Court struck out a judicial review case because the applicant served the wrong documents, showing strict procedure rules still decide Kenyan cases.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant complied with the mandatory provisions of Order 53 Rule 4(1) of the Civil Procedure Rules by serving the statement accompanying the application for leave together with the Notice of Motion
- 2.Whether the failure to serve the statement is a mere technicality curable under Article 159 of the Constitution
- 3.Whether the Notice of Motion dated 9th December 2014 is competent
Key legal issues
#Whether service of the Notice of Motion without the statement accompanying the application for leave satisfies Order 53 Rule 4(1)
It does not; the statement must be served with the Notice of Motion and reliance on the Chamber Summons by reference is insufficient
Order 53 Rule 4(1) requires copies of the statement accompanying the application for leave to be served with the Notice of Motion. The Notice of Motion here merely referred to the grounds in the Chamber Summons dated 15th June 2010 without attaching or serving the statement of facts or verifying affidavit. The affidavit of service confirmed only the Notice of Motion was served. This deprived the respondent of knowing the case against it.
Whether the defect is a mere technicality curable under Article 159 of the Constitution
No; following Sigalaga Polytechnic v Nelson Ogwero (Court of Appeal), non-compliance with Order 53 Rule 4(1) is not curable by Article 159
The court considered whether Article 159's overriding objective could cure the failure to serve the statement but held, on the authority of the Court of Appeal decision in Sigalaga Polytechnic v Nelson Ogwero, Civil Appeal No. 13A of 2013, that the requirement is mandatory and the defect is not a mere technicality.
Legal principles established
#- Once leave is granted in judicial review proceedings, the statement accompanying the application for leave must be served with the Notice of Motion; failure to do so renders the motion defective and is not curable under Article 159 of the Constitution
Court orders
#- 1.The Notice of Motion dated 9th December 2014 and filed on 19th December 2014 was found to be incompetent
- 2.The Notice of Motion was struck out
- 3.Costs of the application awarded to the 3rd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 53 of the Civil Procedure Rules (judicial review jurisdiction)
Relief refused
#Order of certiorari to quash the award of the Central Land Dispute Tribunal of 8th June 2010
The Notice of Motion was defective and incompetent as the statement accompanying the application for leave was never served with the Notice of Motion as required by Order 53 Rule 4(1) of the Civil Procedure Rules
Costs of the application borne by the respondents
Costs were instead awarded to the 3rd respondent
Costs
Costs to the 3rd respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
once that leave was granted, it was mandatory that the provisions of Order 53 Rule 4(1) of the Civil Procedure Rules are complied with and that the said Notice of Motion is served with the statement that accompanied the application for leave. That is the only way the respondent will know the case against it.
That was not done in this case thus rendering the Notice of Motion defective.
Ultimately therefore, the 3rd respondent’s grounds of opposition are up-held with the result that this Court finds the Notice of Motion dated 9th December 2014 and filed herein on 19th December 2014 to be incompetent. The same is accordingly struck out with costs to the 3rd respondent.
Issues in the judgment
#The affidavit of service is recorded as dated 19th March 2015 yet was filed on 19th January 2015, an apparent internal inconsistency in dates
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Principal Magistrate’s Court Kerugoya,Central Land Disputes Tribunal & Tabitha W. Muriuki Ex-Parte Nancy Wathiba Kimoo (Judicial Review 20 of 2013) [2015] KEELC 824 (KLR)", Case Analysis (2015). Judicial Review Notice of Motion dated 9th December 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/824/eng@2015-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.