Republic v Chairman Bureti Land Disputes Tribunal & another; Ludia Matui & another (Interested Parties) Ex Parte Philip Kirui Korir & another [2019] KEELC 2949 (KLR)
The bottom line
#Kenya's High Court in Kericho set aside ex-parte orders made without serving the applicants, giving them a chance to defend the judicial review case.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex-parte orders of 30.1.2018 in the judicial review proceedings could be set aside
The application was granted and the ex-parte orders and all consequential orders were set aside, with leave to file a Replying Affidavit within 21 days
Final judicial review orders are not amenable to setting aside, but a default order is not final and may be set aside. Applying the Shah v Mbogo principles, the court found merit in the applicants' claim of lack of service - they deponed they were never served with the Notice of Motion for Judicial Review and only learnt of the suit when auctioneers attended to attach property. The order was thus set aside to allow the substantive judicial review application to be heard on its merits.
Legal principles established
#- Final judicial review orders (mandamus, prohibition, certiorari) are not amenable to recall, review or setting aside, but a default order granted in judicial review proceedings is not a final order and is amenable to review or setting aside by the issuing court
- The discretion to set aside ex-parte orders is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not to assist a party who seeks to obstruct or delay justice
Court orders
#- 1.The orders issued on 30.1.2018 together with all consequential orders thereto are set aside
- 2.The applicants shall file their Replying Affidavit within 21 days from the date of the Ruling so that the substantive application for Judicial Review can be heard on its merits
- 3.Costs of the application shall be in the cause
- Jurisdiction invoked
- Judicial review jurisdiction under sections 8(3) and 8(5) of the Law Reform Act; inherent discretion to set aside ex-parte orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chairman Bureti Land Disputes Tribunal & another; Ludia Matui & another (Interested Parties) Ex Parte Philip Kirui Korir & another [2019] KEELC 2949 (KLR)", Case Analysis (2019). Judicial Review Application dated 14th March 2019 (Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2949/eng@2019-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.