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ELCDismissedNot stated in the judgment· [2020] KEELC 2699 (KLR)

Republic v Chief Administrator Coast Province General Hospital ; Ex-parte Applicant: Billy Wanjala And Elizabeth Wanjala Both t/a Bluewave Investments [2020] KEELC 2699 (KLR)

Environment and Land Court
12 May 2020
AOA. Omollo
1,023 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled a wrong court heading on a filed application was a fixable mistake, not a reason to strike the case out.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection dated 26th June 2019 contending that the court lacked jurisdiction to entertain the Applicant's substantive notice of motion dated 28/3/2019, because the motion had been prepared, headed and stamped 'H.C. Constitutional and Judicial Review Division' even though the suit had on 28th March 2019 been transferred from the High Court to the Environment and Land Court. Counsel for the Respondent (Mr. Tajbhai) relied on Nicholas Kiptoo Arap Korir Salat v IEBC and the MER Security judicial review decision, arguing that Article 159(2)(d) is not a panacea and that Order 53 Rule 3(1) is couched in mandatory terms. Counsel for the Applicant (Miss Murage) countered that the misheading was a curable technicality, that no prejudice had been demonstrated, and that the application had been placed in the correct transferred file and answered by grounds of opposition. Justice A. Omollo distinguished both cited authorities, observing that the defects in those cases - improper service of notice of appeal and filing out of the mandatory 21-day period - were grave, whereas the misheading here arose from confusion occasioned by the transfer of the file and was curable by amendment. Holding that no prejudice would be occasioned to the Respondent, the court found no merit in the preliminary objection, dismissed it, and made no order on costs, delivering the ruling electronically at Busia on 12th May 2020 due to the Covid-19 pandemic.

Key legal issues

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01

Whether a substantive motion headed 'High Court' after transfer to the Environment and Land Court is fatally defective

Holding

No - the defect is a procedural technicality curable by amendment and causes no prejudice to the Respondent

Reasoning

The court distinguished the authorities relied on by the Respondent: in Nicholas Kiptoo the fault concerned service of notice of appeal, and in MER Security the motion was filed out of the mandatory 21-day period. Both omissions were grave breaches of mandatory rules. Here, the misheading was occasioned by confusion following the transfer of the file from the High Court, no separate High Court file exists between the parties, and the Respondent had already filed grounds of opposition, so no prejudice arose.

p. 2

Legal principles established

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  • Article 159(2)(d) of the Constitution is not a licence to disregard rules of procedure; whether a procedural defect is fatal depends on its gravity, but curable irregularities causing no prejudice should not result in striking out.

Court orders

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  1. 1.The preliminary objection dated 26/6/2019 is dismissed
  2. 2.No order on costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Rules, 2010Order 53 Rule 3(1)
  • Civil Procedure ActOrder 3 r.3(1) (as cited by counsel)

Cases cited (2)

  • Nicholas Kiptoo Arap Korir Salat Vs Independent Electoral and Boundaries Commission and 6 others
    (2013) eKLR
  • R Vs Public Procurement Administrative Review Board & Ano exparte MER Security and Communications Systems Ltd/Megason Electronics & Control 1978 (JV) & Ano
    NBI HCJR Application no 180 of 2018
Jurisdiction invoked
Jurisdiction of the Environment and Land Court over a matter transferred from the High Court (judicial review proceedings)

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 Chief Administrator Coast Province General Hospital ; Ex-parte Applicant: Billy Wanjala And Elizabeth Wanjala Both t/a Bluewave Investments [2020] KEELC 2699 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2699/eng@2020-05-12

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