Judah Muthee Festus v Land Adjudication & Settlenent Officer Tigania East & another; Joseph Mathita Ikirima (Interested Party) [2022] KEELC 1393 (KLR)
The bottom line
#A Kenyan court threw out a judicial review case because the applicant filed new documents without permission after getting leave to sue.
What this practically means
#Executive summary
#Key legal issues
#Competency of a notice of motion founded on a fresh statement of facts and verifying affidavit filed after leave without leave of the court
The notice of motion was incompetent and struck out as an abuse of process because it was based on documents filed without leave and at variance with the substratum of the proceedings.
Order 53 Rule 4 requires the applicant to serve the chamber summons, statement of facts and verifying affidavit filed at the leave stage; the applicant's case is complete at leave. Under Order 53 Rule 4(1)-(2) and Section 9(1)(c) of the Law Reform Act, no new grounds or reliefs may be relied on at the hearing except with leave. The applicant filed entirely new documents without seeking leave, and parties replied and submitted on the wrong documents, fatally undermining the motion.
Further variance between the prayers and grounds in the notice of motion and those in the amended statement of facts at leave stage
Even ignoring the defective documents, the motion could not stand because its prayers and grounds differed from those in the amended statement of facts at the leave stage.
The amended statement of facts presented at leave sought certiorari, prohibition and mandamus, while the notice of motion sought only two prayers. The grounds on the face of the motion also differed from those in the amended statement. The court held that it could not rescue the situation either way, since the substantive motion was fundamentally inconsistent with the pleadings on which leave was granted.
Legal principles established
#- Once leave to commence judicial review is granted, the substantive notice of motion need not be accompanied by anything else; the applicant must rely on the statement of facts and verifying affidavit filed at the leave stage, and no new grounds or reliefs may be introduced without leave
Court orders
#- 1.The notice of motion dated 3.11.2021 is found to be incompetent, a non-starter and an abuse of the court process and is dismissed
- 2.Costs of the application awarded to the respondents and the interested party
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and Section 9 of the Law Reform Act (Cap 26)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Judah Muthee Festus v Land Adjudication & Settlenent Officer Tigania East & another; Joseph Mathita Ikirima (Interested Party) [2022] KEELC 1393 (KLR)", Case Analysis (2022). Notice of Motion dated 3.11.2021 (Judicial Review proceedings arising from amended Chamber Summons dated 1.10.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1393/eng@2022-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.