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ELRCDismissedJR No. E003 of 2024 (Motion dated 4th March 2024)· [2024] KEELRC 2039 (KLR)
Omondi v Migori County Government, Office of the County Public Service Board (Judicial Review E006 of 2024) [2024] KEELRC 2039 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#Kenya's High Court dismissed a judicial review motion filed before leave was granted, confirming Order 53's leave requirement still applies despite the Fair Administrative Actions Act.
What this practically means
#Executive summary
#The Applicant, CPA Marvin Ngei Omondi, moved the High Court at Kisumu by Notice of Motion dated 4th March 2024 under Articles 23(3), 47, 165 and 258 of the Constitution and the Fair Administrative Actions Act, seeking an interim conservatory order restraining the implementation and operationalization of the Respondent's advertised recruitment vacancies published in the Standard newspaper of 16th February 2024. The application was intended to preserve the substratum of pending judicial review proceedings. The Respondent opposed, arguing that the court lacked jurisdiction because the motion was filed before leave to institute judicial review proceedings had been granted, that no administrative action had been taken against the Applicant under Article 47, and that a conservatory order could not issue absent a substantive motion. The court framed a single issue: whether the Applicant was entitled to the orders sought. Relying on Order 53 Rule 1 of the Civil Procedure Rules and the decision in Felix Kiprono Matagei v Attorney General, the court held that the FAAA expanded the scope of judicial review reliefs but did not displace the Order 53 procedure, which requires leave before filing. Since the motion was filed on 4th March 2024, before leave was granted on 13th March 2024, it was fatally defective. The motion was dismissed with costs to the Respondent. Judgment delivered on 25th July 2024 by C. N. Baari, J.
Key legal issues
#01
Whether the court has jurisdiction over a judicial review motion filed before leave was granted
Holding
The motion was fatally defective and was dismissed with costs
Reasoning
Order 53 Rule 1 of the Civil Procedure Rules requires leave before applying for judicial review. The Fair Administrative Actions Act expanded the scope of judicial review reliefs but did not provide an alternative procedure, and Order 53 was not repealed. The motion dated 4th March 2024 was filed before leave granted on 13th March 2024, hence defective.
p. 2
Legal principles established
#- Order 53 of the Civil Procedure Rules remains the governing procedure for invoking judicial review jurisdiction, notwithstanding the enactment of the Fair Administrative Actions Act; leave must be obtained before filing judicial review applications
Court orders
#- 1.The Notice of Motion dated 4th March 2024 is dismissed with costs to the Respondent
- Jurisdiction invoked
- Articles 23(3), 47, 165 and 258 of the Constitution of Kenya (2010) and Sections 3, 5, 7, 9 & 12 of the Fair Administrative Actions Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omondi v Migori County Government, Office of the County Public Service Board (Judicial Review E006 of 2024) [2024] KEELRC 2039 (KLR)", Case Analysis (2024). JR No. E003 of 2024 (Motion dated 4th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2039/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.