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ELCAllowedNotice of Motion dated 7th October 2016 (arising from Judicial Review application dated 13th February 2012)· [2017] KEELC 2919 (KLR)

Michael Thiongo Gatete v Attorney General & 4 others [2017] KEELC 2919 (KLR)

High Court of Kenya
21 April 2017
JMJ. M. MUTUNGI
1,196 words in judgment
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The bottom line

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Kenya's High Court revived a judicial review case dismissed over a late deposit, ruling that technical slips shouldn't block a fair hearing.

What this practically means

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Executive summary

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By a Notice of Motion dated 7th October 2016, the applicant sought a stay of execution of, and the setting aside of, the court's orders of 30th September 2016, which had dismissed his substantive judicial review application dated 13th February 2012 for failure to comply with an order of 17th April 2015 by Hon. Justice Okongo requiring the deposit of security of kshs. 50,000/= within 30 days. The applicant explained that after the ruling of 17th April 2015 the court file could not be traced in the registry, preventing compliance despite written requests by his advocates dated 13th May 2015 and 9th June 2015, and that following the intervention of Justice Okongo the deposit was ultimately received on 1st July 2015, albeit out of time, though the judge's direction was not in writing and no formal extension application was made. The interested parties, through a replying affidavit sworn by the 2nd interested party, Naftali Mabeya Ontonyi, opposed the application, contending the stay had lapsed and the application stood dismissed for non-compliance. The court accepted that the applicant's default was not deliberate and was caused by factors beyond his control, and that the earlier judgment rested on a technicality rather than the merits. Finding no prejudice to the interested parties that could not be compensated in costs, the court exercised its discretion in the applicant's favour: it set aside the judgment of 30th September 2016, deemed the security deposit extended to 1st July 2015, directed that the substantive Notice of Motion of 13th February 2012 be fixed for hearing, and awarded the interested parties thrown away costs of kshs. 15,000/= payable within 30 days.

Key legal issues

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Whether the dismissal of the judicial review application for non-compliance with a security deposit condition should be set aside

Holding

The dismissal was set aside because the applicant was prevented by factors beyond his control (the unavailability of the court file) from complying with the order of 17th April 2015, and the interested parties would suffer no prejudice not compensable in costs.

Reasoning

The court found the applicant's advocates had written to the Deputy Registrar seeking retrieval of the file to enable compliance, that the applicant deposited the security on 1st July 2015 albeit out of time after Justice Okongo's intervention, and that failure to seek a formal extension was not deliberate. The judgment of 30th September 2016 was based on a technicality rather than the merits, and doing justice required the substantive application to be heard on its merits.

p. 3

Legal principles established

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  • The essence of exercising judicial discretion is to do justice to the parties, and technical defaults occasioned by factors beyond a party's control should not defeat a hearing on the merits where no irreparable prejudice is caused.

Court orders

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  1. 1.The judgment delivered on 30th September 2016 is set aside
  2. 2.The order for placing of the security deposit is deemed to have been extended to 1st July 2015 when the applicants deposited the sum of kshs. 50,000/=
  3. 3.The applicant's Notice of Motion dated 13th February 2012 be fixed for hearing at the court registry
  4. 4.The applicant to pay the interested parties thrown away costs assessed at kshs. 15,000/= within thirty (30) days from the date of the ruling
Jurisdiction invoked
Inherent discretion of the High Court to set aside its own judgment and extend time for compliance with conditions of a stay order in a judicial review matter

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, "Michael Thiongo Gatete v Attorney General & 4 others [2017] KEELC 2919 (KLR)", Case Analysis (2017). Notice of Motion dated 7th October 2016 (arising from Judicial Review application dated 13th February 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2919/eng@2017-04-21

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