[2012] KEHC 3374 (KLR)
The court found that although the application for leave to file judicial review proceedings was made within the statutory six-month period, the substantive notice of motion was filed after the expiry of the 21 days granted by the court for filing. The applicant did not seek an extension of time or renewal of leave,...
Source-derived case information.
- Citation
- [2012] KEHC 3374 (KLR)
- Parties
- Applicant: Bernard Muchiri Gathumbi; Respondent: Chairman Central Land Disputes Tribunal; Respondent: Senior Resident Magistrate Kerugoya; Respondent: George D. Gathungu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 26 of 2007
- Procedural Posture
- Judicial Review / Ruling on Preliminary Objection
- Outcome
- application struck out with costs
- Legal Topics
- Judicial Review Timelines, Leave to File Judicial Review, Striking Out Proceedings, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Muchiri Gathumbi
Applicant
Chairman Central Land Disputes Tribunal
Respondent
Senior Resident Magistrate Kerugoya
Respondent
George D. Gathungu
Respondent
Procedural Posture
Judicial Review / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the notice of motion was filed within the period permitted by law for judicial review proceedings.
- 2 Whether the leave granted to file judicial review proceedings had lapsed before the substantive motion was filed.
- 3 Whether the proceedings are a nullity for want of proper leave and for being filed under the wrong provisions.
Ratio Decidendi
The court found that although the application for leave to file judicial review proceedings was made within the statutory six-month period, the substantive notice of motion was filed after the expiry of the 21 days granted by the court for filing. The applicant did not seek an extension of time or renewal of leave, and therefore, at the time of filing the notice of motion, there was no valid leave in existence as required by Order 53 Rule 1(2) of the Civil Procedure Rules. The court held that the proceedings were incompetent for want of valid leave and that the preliminary objection was merited. Consequently, the application was struck out with costs to the respondent.
Court Disposition
application struck out with costs
Orders
- The amended application is struck out with costs to the 3rd respondent.
- Preliminary objection by the 3rd respondent is upheld.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
JUDICIAL REVIEW 26 OF 2007
IN TH MATTER OF AN APPLICATION BY KBERNARD MUCHIRI GATHUMBI FOR LEAVE TO APPLY FOR ORDER OF JUDICAL REVIEW
AND
IN THE MATTER OF LAND DISPUTES TRIBUNAL ACT NO 18 OF 1990
AND
IN THE MATTER OF CENTRAL LAND DISPUTES TRIBUNAL
AND
IN THE MATTER OF PROCEEDINGS IN KERUGOYA SENIOR RESIDENT MAGISTRATE’S COURT LDT ARB CASE NO. 57 OF 2007
BERNARD MUCHIRI GATHUMBI…………………………………………………..……APPLICANT
VERSUS
THE CHAIRMAN CENTRAL LAND DISPUTES TRIBUNAL……....…………..1ST RESPONDENT
SENIOR RESIDENT MAGISTRATE KERUGOYA………….……...………..….2ND RESPONDENT
GEORGE D. GATHUNGU…………………………………………..…………..3RD RESPONDENT
R U L I N G
This is the preliminary objection raised in the notice dated 17/1/2011 by the 3rd Respondent. It seeks to have the entire proceedings instituted herein to be dismissed on the following grounds:
1. The notice of motion dated 3/7/2008 is fatally and substantively defective in law having been brought under the wrong provisions of the law.
2. That the notice of motion dated 3/7/2008 and filed on 4/7/2008 together with leave to institute Judicial Review proceedings are a nullity obinitio and amount to abuse of court process.
3. That the suit land in issue is registered in the names of a 3rd party since 28/8/2008 by names Sospeter Maina and court orders should not be issued in vain.
4. That this court lacks jurisdiction to entertain the proceedings herein.
Only Mr. Kahiga for the 3rd Respondent filed written submissions. He gave a history of the matter and submitted that the matter was improperly before this Court. He has also cited a number of authorities. The 3rd Respondent argues that the leave granted herein is a nullity. The reason he gives is that the matter was filed outside the 6 months period.
It is true Judicial Review proceedings seeking an order of certiorari must be filed within 6 months. The record shows that the award complained of was made on 3/10/2007. It was adopted as a Judgment of the Court on 22/10/2007. The application for leave to file Judicial Review proceedings was to filed on 17/12/2007. This clearly shows it was filed in less than 2 months. This is therefore contrary to the 3rd Respondents averment and submissions that it was filed outside the 6 months period.
The application was heard on 5/6/2008 by the Court. I do not know why but I believe that was the date given to the Applicant. The Applicant did not have control of the Court diary. I therefore find that the Leave was properly granted. The order of the Court was that the LEAVE operates as stay and the substantive motion be filed within 21 days. From the record I see a notice of motion dated 3/7/2008 was filed on 4/7/2008. There is an amended notice of motion filed on 8/10/2010. The amendment was done with the leave of the Court. Therefore substantially the exparte applicant filed his notice of motion on 4/7/2008.
The Leave granted on 5/6/2008 gave the exparte Applicant 21 days within which to file the Notice of Motion. The 21 days expired on 26/6/2008. Technically, when the notice of motion was filed on 4/7/2008, there was no leave. And there was nothing difficult for the exparte Applicant to come back to the Court and ask for extension of the time for filing of the notice of motion. He failed to do that and has no one to blame for this blunder.
I therefore agree with the 3rd Respondent’s counsel that the amended application before the Court was filed without the substantive leave, as the leave granted on 5/6/2008 lapsed on 26/6/2008. On 4/7/2008 when the notice of motion was filed there was no Leave as is envisaged under Order 53 Rule 1(2) of the Civil Procedure Rules.
I accordingly uphold the preliminary objection raised by Mr. Kahigah for the 3rd Respondent. The application cannot therefore stand and the same is struck out with costs.
DELIVERED, SIGNED AND DATED AT EMBU THIS 4TH DAY OF JULY, 2012.
H.I. ONG’UDI
JUDGE
In the presence of:-
Mr.Kahigah for 3rd Respondent/Applicant
Ms. Mureithi for Exparte Applicant
Njue CC