Masara & another v County Government of Nairobi (Environment and Land Judicial Review Case E004 of 2022) [2023] KEELC 288 (KLR)
The bottom line
#Kenya's High Court ruled that a missing Verifying Affidavit in a judicial review case is a fixable mistake, not a fatal one.
What this practically means
#Executive summary
#Key legal issues
#Whether the absence of a Verifying Afidavit at the leave stage is fatal to a judicial review application
Not fatal; a Supporting Afidavit that sets out and verifies the facts suffices, and the omission is curable under Article 159 of the Constitution read with Sections 1A and 1B of the Civil Procedure Act
The court acknowledged that a Verifying Afidavit is a mandatory document under Order 53 Rule 1(2)(b) and that it is the verifying affidavit, not the statutory statement, that carries evidential value. However, following Sabina Zaverio Masaku and Jared Nzano, the court held that post-2010 Constitution judicial review is a constitutional right and the omission of a verifying affidavit where a supporting affidavit verifies the facts is a technicality excusable under Article 159(2) and Sections 1A and 1B of the Civil Procedure Act.
Whether the Respondent could challenge leave already granted through a preliminary objection
No; leave can only be discharged or set aside through a formal application, and once the substantive motion is filed the leave is spent
Relying on Republic vs Land Disputes Tribunal Court Central Division Exparte Nzioka and Republic vs Secretary of State Exp Harbage (approved in Aga Khan Education Service Kenya), the court held that although leave is provisional, it can only be set aside on an application by the respondent before filing of the substantive motion. Leave had been granted on March 28, 2022 and no application to set it aside had been made, so the objection was moot.
Whether the objection qualified as a competent preliminary objection
Yes, since it questioned the validity of the judicial review application on the basis of failure to file a mandatory pleading
The court applied the Mukhisa Biscuits test as restated by the Supreme Court in Hassan Ali Joho and IEBC vs Jane Cheperenger, and found that the objection, being directed at the absence of a mandatory document required by Order 53, raised a pure point of law and was a proper preliminary objection.
Legal principles established
#- Failure to file a Verifying Afidavit, where a Supporting Afidavit sworn at the time of the application sets out the facts relied on, is a procedural irregularity curable under Article 159 of the Constitution and Sections 1A and 1B of the Civil Procedure Act
- Leave to apply for judicial review, once granted and after filing of the substantive motion, can only be set aside by a formal application, not through a preliminary objection
Court orders
#- 1.The Notice of Preliminary Objection dated April 8, 2022 is dismissed with costs
- Jurisdiction invoked
- Judicial review jurisdiction under Order 53 of the Civil Procedure Rules, 2010 and Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masara & another v County Government of Nairobi (Environment and Land Judicial Review Case E004 of 2022) [2023] KEELC 288 (KLR)", Case Analysis (2023). Not stated in judgment (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/288/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.