Republic v Principal Magistrate’s Court Kerugoya & 2 others Ex-parte Nancy Wathiba Kimoo [2016] KEELC 168 (KLR)
The bottom line
#The High Court dismissed a landowner's bid to revive her judicial review case because she never served the required statement on her opponent.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Order 53 Rule 4(1) of the Civil Procedure Rules on service of the statement accompanying an application for leave
The Notice of Motion was struck out because the statement accompanying the application for leave was not served on the 3rd respondent as required; the applicant's later attempt to obtain an extension of time could not cure that non-compliance
The court examined the affidavit of service of advocate Jackline W. Kiragu dated 19th January 2015, which showed only a Hearing Notice was served on the firm of Gori Ombongi & Co. Advocates. The annexture NWK 3 was merely a copy of the Notice of Motion, and the annexed supporting affidavit was not stamped as received. The court therefore confirmed its earlier finding that the statement was never served.
Alleged error apparent on the face of the record based on claimed service of documents on the 3rd respondent
The claim that the 3rd respondent misled the court was rejected; the court relied on the process server's affidavit, which showed the supporting affidavit and statement were never served
The 3rd respondent alleged in her replying affidavit that she was actually served with the Chamber Summons, statement of facts and verifying affidavit on 31st March 2015. The court found it had not been given any wrong impression, as it acted solely on the process server's affidavit filed in response to grounds of opposition.
Legal principles established
#- Where service of a particular document is denied, the court can only look at the affidavit of the process server to establish what was served
- A supporting affidavit is not the 'statement' that must accompany service under Order 53 Rule 4(1) of the Civil Procedure Rules
Court orders
#- 1.The applicant's Notice of Motion dated 9th November 2015 is dismissed
- 2.Costs of the application are awarded to the 3rd respondent
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules (extension of time to file substantive judicial review motion)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Principal Magistrate’s Court Kerugoya & 2 others Ex-parte Nancy Wathiba Kimoo [2016] KEELC 168 (KLR)", Case Analysis (2016). JR application dated 9th November 2015, filed 17th November 2015 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/168/eng@2016-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.