[2010] KEHC 4094 (KLR)
The court determined that the application for an order of mandamus under Order 53 of the Civil Procedure Rules cannot be disposed of solely on the basis of written submissions. The nature of the application requires that full evidence be adduced by the parties and tested through cross-examination. Therefore, the...
Source-derived case information.
- Citation
- [2010] KEHC 4094 (KLR)
- Parties
- Applicant: Alice Muthoni Chege; Respondent: Town Clerk, City Council of Nairobi; Interested Party: Daniel Marenga Gachenga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 581 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Application
- Outcome
- Application to be set down for hearing with full evidence.
- Judges
- DA Onyancha
- Legal Topics
- Judicial Review, Order of Mandamus, Procedure for Evidence, Order 53 Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Muthoni Chege
Applicant
Town Clerk, City Council of Nairobi
Respondent
Daniel Marenga Gachenga
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Application
Legal Issues
- 1 Whether the application for an order of mandamus can be determined on written submissions alone without oral evidence and cross-examination.
- 2 Whether the application requires full evidence from the parties before determination.
Ratio Decidendi
The court determined that the application for an order of mandamus under Order 53 of the Civil Procedure Rules cannot be disposed of solely on the basis of written submissions. The nature of the application requires that full evidence be adduced by the parties and tested through cross-examination. Therefore, the matter should proceed to a hearing before a judge in the relevant Division, where evidence can be properly recorded and evaluated.
Court Disposition
Application to be set down for hearing with full evidence.
Orders
- Parties to attend the Registry to fix the application seeking the order of mandamus for hearing before a judge in the relevant Division.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Miscellaneous Application 581 of 2007
ALICE MUTHONI CHEGE. .............................................. APPLICANT
VERSUS
TOWN CLERK, CITY COUNCIL OF NAIROBI. .......RESPONDENT
DANIEL MARENGA GACHENGA. ................ INTERESTED PARTY
R U L I N G
The application before the court is the Notice of Motion dated 11th October, 2007. The motion is one brought under Order 53 of the Civil Procedure Rules, which is a special procedure.
I have given the application a quick perusal and the impression I get is that the application requires full evidence from the parties relevant to it. That is to say that the earlier method for disposal of the application through written submissions only, before concrete evidence is recorded and tested through cross-examination, will not suffice.
I accordingly recommend that the parties attend the Registry to fix the application seeking the order of mandamus, for a hearing before a judge in the relevant Division. Orders accordingly.
Dated and delivered at Nairobi this 7th day of April 2010.
.........................................
D A ONYANCHA
JUDGE