[2004] KEHC 1653 (KLR)
The court held that the applicant's chamber summons dated 2nd December 2003 was already struck out by Justice Nyamu on 3rd December 2003, as there is no legal provision for setting aside an order made in respect of judicial review; the appropriate remedy is an appeal under Section 8(5) of the Law Reform Act. The...
Source-derived case information.
- Citation
- [2004] KEHC 1653 (KLR)
- Parties
- Applicant: Daniel Oganah; Defendant: The Solicitor General & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 595 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons Seeking to Set Aside a Judicial Review Order
- Outcome
- Application struck out; applicant to bear costs.
- Legal Topics
- Judicial Review, Setting Aside Orders, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Oganah
Applicant
The Solicitor General & Another
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons Seeking to Set Aside a Judicial Review Order
Legal Issues
- 1 Whether the applicant can seek to set aside an order made in respect of judicial review by way of chamber summons.
- 2 Whether the applicant's conduct in re-listing a struck-out application constitutes abuse of process.
Ratio Decidendi
The court held that the applicant's chamber summons dated 2nd December 2003 was already struck out by Justice Nyamu on 3rd December 2003, as there is no legal provision for setting aside an order made in respect of judicial review; the appropriate remedy is an appeal under Section 8(5) of the Law Reform Act. The applicant's conduct in re-listing and arguing the same application before another judge, without disclosing the prior ruling, amounted to an abuse of the court process and bordered on contempt. The court found no reason to disturb the earlier order and ordered the applicant to bear the costs of the application.
Court Disposition
Application struck out; applicant to bear costs.
Orders
- The applicant shall bear the costs of the application.
- No disturbance of the order made by Justice Nyamu on 3rd December 2003.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MISCELLANEOUS APPLICATION NO. 595 OF 2001
DANIEL OGANAH …………………………………….. APPLICANT
VERSUS
THE SOLICITOR GENERAL & ANOTHER …………. DEFENDANT
RULING
The application before me is the Chamber Summons dated 2nd December 2003. It was fixed for hearing on the 2nd of February 2004 pursuant to an order made by the Hon. Lady Justice Aluoch when the matter was mentioned before her on 11th December 2004. I note that the Learned Judge’s order refers to an application dated 2nd October 2003 which does not exist. However the representations and arguments before me on 2nd February were in relation to the Chamber Summons dated 2. 12. 2003.
I have noted that at the mention before the Learned Judge on 11. 12. 2003, no mention was made of the Ruling made by Justice Nyamu on 3rd December 2003 when the application was first in court. On that day the Learned Justice Nyamu ruled as follows:
“Application dated 2 nd December 2003 is flawed in that there is no provision for setting aside an order made in respect of Judicial Review. The relief given by law is an appeal as per Section 8 (5) of the Law Reform Act. The Application is struck out with no order as t o Costs”.
It is surprising that the applicant herein had the matter mentioned before Justice Aluoch and had the same application fixed for hearing when the above order is in place and without disclosing the same to her Ladyship. It is also upsetting that the Applicant knowing fully well that his application had been struck out would attend on the date so fixed and argue the same. I find that such action borders on contempt as it demonstrates an outright disregard of the dignity of this court.
The proceedings herein constitute a clear case of abuse of the process as the applicant does not come with clear hands as he hops from one Judge to another. I have no cause to disturb the Learned Justice Nyamu’s order of 3rd December 2003. However, in view of the circumstances, I order that the Applicant do bear costs of the application. Orders accordingly.
Dated, signed and Delivered at Nairobi this 25th day of February 2004.
M.G. Mugo
Ag. Judge
25. 02. 04