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ELRCAllowedApplication dated 18/12/2014 (Notice of Motion); substantive Notice of Motion dated 15/12/2014· [2015] KEELRC 1158 (KLR)

Joseph Kwemoi Pongizi & another vTraffic Commandant & 3 others [2015] KEELRC 1158 (KLR)

High Court of Kenya (judicial review leave matter heard alongside a petition)
30 April 2015
HWHellen Wasilwa
608 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court gave a lawyer extra time to file a judicial review case because the delay was accidental, unopposed, and hurt nobody.

What this practically means

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Executive summary

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The Exparte Applicants, through counsel Daniel Wokabi Mathenge, moved the court by a Notice of Motion dated 18/12/2014 seeking enlargement of time within which to file the substantive Notice of Motion dated 15/12/2014, after leave to institute judicial review proceedings had been granted on 23/10/2014. Counsel explained the delay: on the date leave was granted he had instructed another counsel to hold his brief, and reliance on the colleague's handling led to a mistake in failing to file the substantive motion in time; when he attended court on 20/11/2014 the matter was not listed, and registry inquiries indicated a mention on 4/12/2014; he further fell ill on 8/12/2014 and resumed office on 15/12/2014, the day the substantive motion was filed. The application was brought under certificate of urgency, supported by counsel's affidavit, and was unopposed by the Respondents. The court, Wasilwa J, found that no prejudice would be suffered by the Respondents if the application were allowed, and exercised its discretion to allow the application. The court enlarged time, deemed the Notice of Motion dated 15/12/2014 as properly filed and duly on record, directed the Applicant/Petitioner to serve the petition on the Respondents within 14 days, and directed that the petition be set down for mention for further directions without delay. The judgment is dated 30th April 2015. The costs sought in the application were not addressed in the final orders, and no authorities or statutes were cited.

Key legal issues

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01

Enlargement of time to file the substantive judicial review motion after leave was granted

Holding

The application was allowed; the delay was attributed to counsel's error in handling of the brief, illness, and the matter not being listed, and since the application was unopposed and no prejudice was shown, time was enlarged and the motion deemed properly filed.

Reasoning

The applicants' counsel explained that leave was granted on 23/10/2014 but the lapse of time resulted from reliance on a professional colleague holding his brief, administrative listing confusion, and his illness from 8/12/2014 to 15/12/2014. The Respondents did not oppose the application and the court found no prejudice would ensue. Exercising its discretion, the court enlarged time, deemed the motion of 15/12/2014 properly on record, and directed service and further directions.

p. 2

Legal principles established

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  • Where an application for enlargement of time is unopposed and no prejudice will be suffered by the respondent, the court may exercise its discretion to enlarge time and deem the substantive motion properly filed.

Court orders

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  1. 1.Time within which the Notice of Motion seeking leave to file judicial review proceedings should have been filed is enlarged
  2. 2.The Notice of Motion dated 15/12/2014 is deemed as properly filed and duly on record
  3. 3.The Applicant/Petitioner to serve the petition on the Respondent within 14 days from the date of the order
  4. 4.The petition to be set down for mention on an appropriate day for further directions without delay
Jurisdiction invoked
Discretion under the law to enlarge time for filing judicial review proceedings (statutory provision not specified in the judgment)

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, "Joseph Kwemoi Pongizi & another vTraffic Commandant & 3 others [2015] KEELRC 1158 (KLR)", Case Analysis (2015). Application dated 18/12/2014 (Notice of Motion); substantive Notice of Motion dated 15/12/2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1158/eng@2015-04-30

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