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ELRCStruck OutNot stated in judgment· [2024] KEELRC 15 (KLR)

Republic v County Government of Kisumu & 3 others; Nakitari (Exparte Applicant) (Judicial Review Application E040 of 2023) [2024] KEELRC 15 (KLR)

High Court of Kenya (judicial review jurisdiction)
24 January 2024
RSRADIDO STEPHEN
342 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kisumu struck out a judicial review case against Kisumu County because the applicant filed new documents without the court's permission.

What this practically means

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Executive summary

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The ex-parte applicant, Humphrey Okuku Nakitare, obtained leave on 6 October 2023 to commence judicial review proceedings against the County Government of Kisumu, the County Secretary, the Chief Finance Officer and the County Executive Committee member for Finance & Economic Planning, and filed a Motion on 17 October 2023. The respondents were served but did not participate or file submissions. Judgment was reserved and eventually delivered on 24 January 2024. The court considered the Motion and found it incompetent on four grounds. First, the applicant filed fresh affidavits and a statutory statement rather than exhibiting or attaching the documents filed at the leave stage. Second, he did not obtain the Court's leave to file the new affidavits/statutory statement. Third, he did not exhibit a Certificate of Costs to support his contention that costs had been taxed. Lastly, he did not place before the Court a Certificate of Order against the County Government. On those grounds the Motion dated 16 October 2023 was struck out with no order on costs. The judgment was delivered virtually, dated and signed in Kisumu on 24 January 2024 by Radido Stephen, Judge; Amondi & Co. Advocates appeared for the ex-parte applicant and the Court Assistant was Chrispo Aura.

Key legal issues

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01

Competence of the judicial review Motion

Holding

The Motion was incompetent on four grounds: filing fresh affidavits and statutory statements without leave; failing to exhibit a Certificate of Costs; failing to exhibit a Certificate of Order against the County Government

Reasoning

The court held that a judicial review Motion must rest on the affidavits and statutory statement filed at the leave stage. Substituting fresh documents without the Court's leave breaches procedure. Additionally, the applicant's claim that costs had been taxed was unsupported by a Certificate of Costs, and no Certificate of Order against the County Government was placed before the Court.

p. 2

Legal principles established

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  • An ex-parte applicant must rely on the affidavits and statutory statement filed when seeking leave, or obtain leave to file fresh ones; filing fresh affidavits and statutory statements without leave renders the Motion incompetent

Court orders

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  1. 1.The Motion dated 16 October 2023 is found incompetent and struck out with no order on costs
Jurisdiction invoked
Leave granted by the Court on 6 October 2023 to commence 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 County Government of Kisumu & 3 others; Nakitari (Exparte Applicant) (Judicial Review Application E040 of 2023) [2024] KEELRC 15 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/15/eng@2024-01-24

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