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ELCDismissed· [2018] KEELC 1479 (KLR)

Republic v Attorney General & others Ex-Parte Gitonga Wambugu Kariuki [2018] KEELC 1479 (KLR)

High Court of Kenya
3 October 2018
COChristine Ochieng
1,452 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused to strike out a judicial review application, holding the constitutional right to be heard outweighs procedural technicalities.

What this practically means

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Executive summary

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The ex parte applicant in a concluded judicial review matter filed a preliminary objection dated 27th September 2013 seeking to strike out the interested parties' Notice of Motion dated 12th August 2013, which sought to stay taxation of a party-and-party bill of costs, to set aside or vary ex parte orders of 18th July 2013, and for leave to file a replying affidavit. The objection contended that the interested parties lacked privity of contract and locus standi to have instituted the underlying dispute at the Land Disputes Tribunal, and that the court lacked jurisdiction to rehear or reopen a concluded judicial review application because the Law Reform Act (sections 58(3) and 8(5)) and Order 53 do not provide for setting aside review orders. The interested parties opposed, arguing the objection was ill-informed and an abuse of process. The court, framed with a single issue, held that the interested parties were simply seeking their constitutional right to be heard after their advocate failed to attend court and ex parte orders issued. Applying Mukhisa Biscuit, Ramji Megji Gudka, DT Dobie and the article 159(2)(d) principle that justice be administered without undue regard to procedural technicalities, the court found the objection unmerited, disallowed it, directed that the application of 12th August 2013 be fixed for hearing within 21 days, and ordered costs in the cause.

Key legal issues

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01

Whether the preliminary objection striking out the application of 12th August 2013 for want of privity, locus standi and jurisdiction was sustainable

Holding

The preliminary objection was disallowed; the interested parties' application should be heard on its merits.

Reasoning

Applying Mukhisa Biscuit and the striking-out jurisprudence in Ramji Megji Gudka and DT Dobie, and noting that the interested parties were seeking to exercise their constitutional right to be heard after their advocate failed to attend court, the court held that the ex parte applicant had not demonstrated prejudice. Article 159(2)(d) required justice to be administered without undue regard to procedural technicalities, overcoming the objection that the Law Reform Act and Order 53 do not permit reopening judicial review proceedings.

p. 2

Legal principles established

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  • The overriding objective in article 159(2)(d) of the Constitution cures procedural technicalities that would otherwise bar hearing of an application on its merits, including in judicial review proceedings
  • A party's right to be heard is a constitutional right and a court should not strike out an application which raises issues deserving to be heard on the merits where no prejudice is demonstrated

Court orders

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  1. 1.The preliminary objection dated 27th September 2013 is disallowed as unmerited
  2. 2.The parties are directed to fix the application dated 12th August 2013 for hearing within 21 days from the date of the ruling
  3. 3.Costs will be in the cause
Jurisdiction invoked
Judicial review jurisdiction under the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules; article 159(2)(d) of the Constitution invoked on procedural technicalities

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 Attorney General & others Ex-Parte Gitonga Wambugu Kariuki [2018] KEELC 1479 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1479/eng@2018-10-03

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