Kenya Judgment

High Court · High Court at Nairobi (Milimani Commercial Courts)

Republic v Attorney General, Director National Council of Persons With Disabilities & Policy Unit Technical Manager Kenya Revenue Authority Ex parte Edin Hassan Ibrahim [2021] KEHC 7395 (KLR)

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Source document

01

Holding and result

The court found that the ex parte Applicant's application for leave for judicial review was procedurally defective due to the absence of a supporting statement as mandated by Order 53 Rule 1 of the Civil Procedure Rules. However, rather than striking out the application, the court exercised its discretion to allow the Applicant to rectify the defect by granting leave to file the required statement within fourteen days. The court further directed that the matter be set down for hearing and that the relevant parties be notified accordingly. The decision underscores the importance of procedural compliance in judicial review applications while balancing the need to facilitate access to justice by allowing rectification of curable defects.

Court disposition

Leave granted to file supporting statement; matter set for hearing; directions issued.

Orders

  • The ex parte Applicant is granted leave to file a statement in support of the Chamber Summons dated 24th April 2021 within fourteen days.
  • The Chamber Summons dated 24th April 2021 shall be heard on 10th May 2021.
  • The Deputy Registrar shall list the matter for hearing by email on 10th May 2021.
  • The Deputy Registrar shall send a copy of these directions to the ex parte Applicant by electronic mail by close of business on 26th April 2021.
  • Parties are at liberty to apply.

02

Material facts

Parties

Edin Hassan Ibrahim

Applicant

Attorney General

Respondent

Director National Council of Persons With Disabilities

Respondent

Policy Unit Technical Manager Kenya Revenue Authority

Respondent

03

Procedural history

  1. Posture

    Judicial Review Application / Ruling on Preliminary Application for Leave and Directions

04

Questions and positions

Legal issues

Party arguments

Applicant
The Applicant seeks urgent leave to apply for orders of mandamus and prohibition to compel reinstatement to the National Council of Persons With Disabilities, exemption from income tax, compensation, and to prohibit interference or removal from the Council. The application is supported by affidavits but lacks a supporting statement as required by the Civil Procedure Rules.
Respondent
No substantive arguments from the Respondents are recorded at this preliminary stage, as the matter concerns procedural compliance with filing requirements.

05

Court’s reasoning

  1. 01

    Order 53 Rule 1, Civil Procedure Rules

    An application for leave for judicial review must comply with Order 53 Rule 1 of the Civil Procedure Rules, including filing a statement setting out the grounds and reliefs sought.

  2. 02

    Judicial discretion under Civil Procedure Rules

    Non-compliance with mandatory procedural requirements renders an application incompetent, but the court may grant leave to rectify such defects in the interest of justice.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the ex parte Applicant's application for leave for judicial review was procedurally defective due to the absence of a supporting statement as mandated by Order 53 Rule 1 of the Civil Procedure Rules. However, rather than striking out the application, the court exercised its discretion to allow the Applicant to rectify the defect by granting leave to file the required statement within fourteen days. The court further directed that the matter be set down for hearing and that the relevant parties be notified accordingly. The decision underscores the importance of procedural compliance in judicial review applications while balancing the need to facilitate access to justice by allowing rectification of curable defects.

Obiter and limits

  • Procedural rules are designed to facilitate the administration of justice and should not be used to defeat substantive rights where defects are curable.
  • The court retains discretion to allow parties to rectify procedural defects in the interest of justice.

Court disposition

Leave granted to file supporting statement; matter set for hearing; directions issued.

  • The ex parte Applicant is granted leave to file a statement in support of the Chamber Summons dated 24th April 2021 within fourteen days.
  • The Chamber Summons dated 24th April 2021 shall be heard on 10th May 2021.
  • The Deputy Registrar shall list the matter for hearing by email on 10th May 2021.
  • The Deputy Registrar shall send a copy of these directions to the ex parte Applicant by electronic mail by close of business on 26th April 2021.
  • Parties are at liberty to apply.

Source and reliance status

High Court

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Judgment text

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Source document

High Court

Judgment

[2021] KEHC 7395 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. MISC. E057 OF 2021

IN THE MATTER OF AN APPLICATION FOR LEAVE FOR JUDICIAL REVIEW ORDERS OF MANDAMUS AND PROHIBITION

BETWEEN

REPUBLIC......................................................................APPLICANT

VERSUS

ATTORNEY GENERAL.........................................1ST RESPONDENT

THE DIRECTOR NATIONAL COUNCIL OF PERSONS

WITH DISABILITIES..........................................2ND RESPONDENT

THE POLICY UNIT TECHNICAL MANAGER

KENYA REVENUE AUTHORITY........................3RD RESPONDENT

EX PARTE APPLICANT:

EDIN HASSAN IBRAHIM

RULING

1. Edin Hassan Ibrahim, the ex parte Applicant herein, has moved this Court in an application brought by way of Chamber Summons dated 24th April 2021, in which he is seeking the following orders against the Respondents herein:

1. This application be certified urgent and be heard on a priority basis dispensing with service in the first instance due to its urgency.

2. Leave be granted to the Applicant to apply for: -

a. an ORDER OF MANDAMUS to compel the Director National Council of Persons With Disabilities and the Policy Unit Technical Manager Kenya Revenue Authority Nairobi Station to restore and or reinstate the applicant to his previous position as a member of the National Council Of Persons With Disabilities, and further exempt him from paying any accrued Income Tax, and to compensate the Applicant from the day of his removal in the Council to date.

b. an ORDER OF PROHIBITION against the Respondents from interdicting, suspending or interfering, harassing, intimidating removing the Applicant name from the National Council of Persons With Disabilities and further subjecting the applicant any payment income tax.

c. Damages arising from the matters herein and interest thereon.

3. If leave is granted, a direction that the hearing of the judicial review be expedited.

4. Costs of this Application and the entire proceedings be awarded to the Applicant.

2. The said application is supported a verifying affidavit and supporting affidavit both deponed to by the ex parte Applicant on 24th April 2021. Upon perusal of the application, I note that it is brought pursuant to the provisions of Order 53 of the Civil Procedure Rules. However, the ex parte Applicant has not filed a statement in support thereof as required by Order 53 Rule 1 of the Civil Procedure Rules, neither are the grounds of the application stated. The application is therefore incompetently filed.

3. In the premises I hereby direct as follows:

I.Theex parte Applicant is granted leave to file a statement in support of his Chamber Summons dated 24th April 2021 within fourteen(14)days of today’s date.

II. TheChamber Summons dated24th April 2021shall be heard on 10th May 2021.

III.The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for hearing by email on10th May 2021.

IV.The Deputy Registrar ofthe Judicial Review Division shall send a copy of these directions to theex parte Applicant by electronic mail by close of business on Monday, 26th April 2021.

V.Parties shall be at liberty to apply.

4. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF APRIL 2021

P. NYAMWEYA

JUDGE

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Order 53 Rule 1, Civil Procedure Rules

Legislation

Legislation referenced in the available case record.

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