[2007] KEHC 3060 (KLR)
The court held that once leave to apply for judicial review has been granted and the substantive application has been filed and served, it is not proper for a party to challenge the leave or seek to strike out the proceedings at that stage. Any challenge to leave or the stay order must be made promptly and before...
Source-derived case information.
- Citation
- [2007] KEHC 3060 (KLR)
- Parties
- Applicant: Aviation and Allied Workers Union; Respondent: The Registrar of Trade Unions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 24 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Affidavits and Judicial Review Proceedings
- Outcome
- application dismissed with costs
- Judges
- JW Nyamu
- Legal Topics
- Judicial Review Procedure, Leave to Apply for Certiorari, Striking Out Affidavits, Applicability of Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aviation and Allied Workers Union
Applicant
The Registrar of Trade Unions
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Affidavits and Judicial Review Proceedings
Legal Issues
- 1 Whether the affidavits in support of the application for leave and the entire judicial review proceedings should be struck out.
- 2 Whether the orders made on 18th January 2007 staying the decision of the Registrar of Trade Disputes should be reviewed or vacated.
- 3 Whether the Civil Procedure Act and Rules apply to judicial review proceedings.
Ratio Decidendi
The court held that once leave to apply for judicial review has been granted and the substantive application has been filed and served, it is not proper for a party to challenge the leave or seek to strike out the proceedings at that stage. Any challenge to leave or the stay order must be made promptly and before the substantive application is filed and served. The court further held that judicial review proceedings are sui generis and the Civil Procedure Act and Rules do not apply to them. As the application to strike out the affidavits and proceedings was made out of time and invoked inapplicable procedural rules, it was incompetent and was dismissed with costs to the respondent and...
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 7th February 2007 is dismissed with costs to the Respondent and the Interested Parties.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Civ Appli 24 of 2007
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR AN
ORDER OF CERTIORARI
AVIATION AND ALLIED WORKERS UNION ...................... APPLICANT
VERSUS
THE REGISTRAR OF TRADE UNIONS .......................... RESPONDENT
RULING
In this matter an order for leave to file a judicial review application was made on 18th January 2007 by the court. In addition the court ordered that the leave operates as stay. The application for judicial review was filed on 25th January 2007.
By an application dated 7th of February 2007 the applicant seeks an order for striking out the affidavits in support of the application for leave and the striking out of the entire judicial review proceedings. In the alternative, the applicant seeks an order of review and or the vacating of the orders made on 18th January 2007 staying the decision of the Registrar of Trade Disputes and an order for costs.
The application is opposed and as usual all the parties have filed and exchanged written skeleton arguments. I have in giving this ruling taken into account the skeleton arguments filed by the parties.
The application for judicial review having been filed and served on the applicant find it unacceptable for them to purport to challenge the leave and also to ask for the striking out of the entire judicial proceedings instead of a hearing on merit of the substantive judicial review application. In the case of R v ex-parte Kaka Nzoka Misc Civil Application No. 1217 of 2003 I explained in depth the purpose of leave and I reiterate those reasons in this ruling. Unless a challenger brings an application in good time challenging leave and the stay already given, it would not be right for the court to hear such challenge after the filing and service of the substantive application. The proper way to proceed is to hear the substantive application on merit including any issues which could have affected the grant of leave. Leave having been granted and not challenged in good time is spent and any serious challenge by an applicant must be taken up in the substantive application. For this reason I would dismiss this application. The additional reason why this application is incompetent is that it purports to invoke both the Provisions of the Civil Procedure Act and Rules and this court including the Court of Appeal have repeatedly ruled that they do not apply to judicial review proceedings which are sui generis. There is a wealth of authorities on this and I need that reproduce them again.
In the result, the Notion of Motion dated 7th February 2007 is dismissed with costs to the Respondent and the Interested Parties.
DATED and delivered at Nairobi this 27th April 2007.
J.G. NYAMU
JUDGE