Joel Madahana v Director of Forest Services [2019] KEELC 767 (KLR)

The court examined Order 45 Rule 1 and Rule 2 of the Civil Procedure Rules. Rule 2(1) requires review applications to go to the judge who made the order, but Rule 2(2) permits any other judge attached to the court to hear the application where the original judge is no longer attached. Ombwayo J, who made the exparte order, had been transferred to the Environment and Land Court, Kisumu, so the present judge properly seized of the station may determine the review. The authority relied on by the applicant dealt with setting aside a valid judgment on appeal, distinguishable from review of an exparte order where the respondent seeks an opportunity to be heard.

Counsel for the applicant relied on the Waweru decision, which cited Stephen Mwaura Njuguna v Douglas Kamau Ngotho, for the proposition that a judge cannot set aside the decision of a judge of concurrent jurisdiction. The court found that the facts differ: in that case a valid judgment was set aside, whereas the order of 4th May 2018 was granted exparte after the respondent failed to enter appearance or file a reply, and the respondent now seeks only to be heard on review. The jurisdiction conferred by Order 45 Rule 2(2) therefore applies.

Having failed to establish lack of jurisdiction, the applicant cannot escape the ordinary rule that costs follow the event. The court held that the applicant, having failed in the preliminary objection, will pay the respondent's costs, and the final order rejected the preliminary objection with costs to the respondent.