Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutJudicial Review Application (ex parte Applicant v Respondents), Nyeri· [2019] KEELRC 2472 (KLR)

Republic v Administration Police Service & 3 others [2019] KEELRC 2472 (KLR)

Employment and Labour Relations Court
31 January 2019
NMNzioki wa Makau
588 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Respondents raised a preliminary objection against a judicial review application brought by the ex parte Applicant before the Employment and Labour Relations Court at Nyeri, contending that the Applicant failed to comply with Order 53 of the Civil Procedure Rules and Rule 7(2) of the ELRC (Procedure) Rules 2016 by not exhibiting the decision sought to be quashed, rendering the application fatally defective. The Respondents relied on Republic v Mwangi S. Kimenyi ex parte KIPPRA and Republic v Ruiru District Land Disputes Tribunal & Another ex parte Lucia Waithira Muiruri & Another, where Odunga J held that failure to exhibit the impugned decision renders an application incompetent. The ex parte Applicant opposed, arguing the Respondents knew of the impugned notice, that the omission was inadvertent, and that the defect could be cured by a further affidavit; the Applicant subsequently filed a draft further affidavit without leave. Nzioki wa Makau J agreed with Odunga J's reasoning, holding that absent the impugned decision there was no decision capable of being quashed. The preliminary objection was upheld and the judicial review application struck out as defective and devoid of merit, with each party bearing their own costs. Judgment dated and delivered at Nyeri on 31 January 2019.

Key legal issues

#
01

Compliance with Order 53 requirement to exhibit the impugned decision

Holding

Non-exhibition of the impugned decision rendered the judicial review application incompetent and liable to be struck out

Reasoning

The court adopted Odunga J's holding in Republic v Ruiru District Land Disputes Tribunal that exhibiting the decision sought to be quashed is mandatory. Without the decision the court cannot determine whether an order capable of quashing exists or whether the application was brought within time. The ex parte Applicant's explanation of inadvertent mistake and proposed further affidavit did not cure the defect.

p. 2
02

Merits of the preliminary objection

Holding

The preliminary objection was well taken and upheld

Reasoning

The Respondents argued, and the court agreed, that failure to comply with Order 53 and Rule 7(2) of the ELRC (Procedure) Rules 2016 rendered the application fatally defective. The court found the objection 'spot on' and struck out the application as defective and devoid of merit.

p. 2

Legal principles established

#
  • Where an ex parte applicant fails to exhibit the decision sought to be quashed as required by Order 53, the application is incompetent since the court cannot establish whether a decision capable of being quashed exists

Court orders

#
  1. 1.The judicial review application is struck out as defective and devoid of merit
  2. 2.Each party to bear their own costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 53 Rule 7(1) and Rule 7(2)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 7(2)

Cases cited (2)

  • Republic v Mwangi S. Kimenyi ex parte Kenya Institute for Public Policy and Research Analysis (KIPPRA)
    [2013] eKLR
  • Republic v Ruiru District Land Disputes Tribunal & Another ex parte Lucia Waithira Muiruri & Another
    [2014] eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules and the Employment and Labour Relations Court (Procedure) Rules 2016, Rule 7(2)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Administration Police Service & 3 others [2019] KEELRC 2472 (KLR)", Case Analysis (2019). Judicial Review Application (ex parte Applicant v Respondents), Nyeri. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2472/eng@2019-01-31

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