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

2016 on the filing of a judicial review application. The Respondents assert that non-compliance with the provisions of the law render the application fatally and incurably defective. The ex parte Applicant is of course opposed. 2. Parties filed submissions in support and opposition of the objection. In their submissions, the Respondents argue that the failure to comply with these mandatory provisions of the law render the judicial review application a non-starter, incurably defective and bad in law. The Respondent asserts that in line with the authority in Republic v Mwangi S. Kimenyi ex parte Kenya Institute for Public Policy and Research Analysis (KIPPRA) [2013] eKLR the court cannot act in vain against a non-existent decision. Further in the case of Republic v Ruiru District Land Disputes Tribunal & Another ex parte Lucia Waithira Muiruri & Another [2014] eKLR where the court held that the failure to comply with Order 53 Rule 7(1) of the Civil Procedure Rules rendered the entire application incompetent since the court could not establish whether there existed a decision capable of being quashed. 3. The ex parte Applicant submits that the objection was not well taken as the Respondents were aware of the impugned decision and that it was the Respondents who gave the notice thus they cannot be heard to say they are not aware of the notice. The ex parte Applicant submitted that the Respondents would not be prejudiced if a further affidavit were to be filed to cure the defect. It was submitted that it was an inadvertent mistake and therefore the preliminary objection lacked merit and it ought to be dismissed. The ex parte Applicant submitted that he reserved a right/liberty to file a draft copy of the further affidavit together with the submissions. 4. The ex parte Applicant indeed did file the draft copy of the further affidavit alongside the submissions without leave of the court. To the Respondents’ credit, the objection taken was spot on. In the case of Republic v Ruiru District Land Disputes Tribunal & Another ex parte Lucia Waithira Muiruri & Another (supra) Odunga J. held as follows:I am of the view that where the ex parte applicant for any reason is unable to exhibit the decision sought to be quashed, he ought to satisfy the Court on his failure to exhibit the decision which decision is required to be verified by affidavit with the registrar. Failure to comply with this mandatory provision similarly rendered the application incompetent since the Court cannot be in a position to find whether there is in fact an order capable of being quashed and if it exists whether the application was made within the stipulated time. 5. I am in agreement with my brother Odunga J. that in the absence of the impugned decision accompanying the application for judicial review, there is no decision capable of being quashed and therefore the judicial review application herein made by the ex parte Applicant is defective and devoid of any merit fit only for striking out. Each party will bear their own costs. It is so ordered. Dated and delivered at Nyeri this 31st day of January 2019 Nzioki wa Makau JUDGE I certify that this is a true copy of the original DEPUTY REGISTRAR

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