[2004] KEHC 553 (KLR)
The court found that, despite the substantive merits of the applicant's claim for mandamus, the application was fatally defective due to improper titling of the Notice of Motion. The court is bound by precedent, specifically the Farmers Bus Service case, which requires that judicial review applications be brought in...
Source-derived case information.
- Citation
- [2004] KEHC 553 (KLR)
- Parties
- Applicant: Edna Janet Mwolo; Respondent: Director of Pensions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 1033 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection/strike Out
- Outcome
- application struck out for procedural defect; leave to refile granted
- Legal Topics
- Judicial Review, Mandamus, Notice of Motion Title, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edna Janet Mwolo
Applicant
Director of Pensions
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection/strike Out
Legal Issues
- 1 Whether the Notice of Motion was properly titled in accordance with established legal precedent.
- 2 Whether the court can grant an order of mandamus where the application is procedurally defective.
Ratio Decidendi
The court found that, despite the substantive merits of the applicant's claim for mandamus, the application was fatally defective due to improper titling of the Notice of Motion. The court is bound by precedent, specifically the Farmers Bus Service case, which requires that judicial review applications be brought in the name of the Republic. As the applicant failed to comply with this procedural requirement, the court struck out the application. However, the court exercised discretion not to award costs and allowed the applicant 21 days to file a proper application under the rules, directing that any subsequent hearing be before a different judge due to the court's prior expression of...
Court Disposition
application struck out for procedural defect; leave to refile granted
Orders
- The Notice of Motion dated 8th December 2003 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MISC. CIVIL APPL. NO. 1033 OF 2003 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR AN ORDER OF MANDAMUS
EDNA JANET MWOLO ……………………………...………. APPLICANT
VERSUS
THE DIRECTOR OF PENSIONS ……………………… RESPONDENT
R U L I N G
1. The ex-parte, Edna Janet Mwolo seeks orders of Mandamus to compel the Respondent, Director of Pensions, Ministry of Finance to pay the Applicant herein the decretal sum in HCCC No. 2016 of 2001 being Kshs.508,157. 25 with interest at 12% p.a. from 1st February 1998 until payment in full, plus a monthly pension of Kshs.6,207. 85 with effect from 1st February 2002 and costs of the suit taxed at Kshs.111,397. 00. 2. I would have quickly granted the orders sought, as I find no defence at all by the Respondent. It has now become common knowledge in this court and in public generally that the Director of Pensions never pays certain pensioners unless they obtain judgment in court and then enforce the same by way of Judicial Review proceedings (read mandamus).
This court has previously expressed distaste at that conduct and it was surprising when Miss Ouma appeared on 15th January 2004 and said: -
“The Director of Pensions requires a copy of the judgment. I have not been able to join. The original suit is HCCC No. 2016/2001. I have not been successful and yet it is needed for audit purposes before she can pay …..”
3. It is very well that she requires the judgment and decree but all these were and should have given by the Attorney General who appears in the matter before me. To keep pensioners in suspense regarding what really ought to be a simple administrative matter is degrading and humiliating. 4. Having so said and conscious of the fact that this court is bound both by precedent and its own legal snares, I am caught in the unfortunate position of having to dismiss an otherwise cut and dry case. 5. The ex-parte Applicant came to court by and using the wrong title to its Notice of Motion. This court has consistently stood by the effect of the decision in Farmers Bus Service and Others.
The Transport Licensing Appeal Tribunal (1959) E.A. 779 where it was said that the Notice of Motion should have been entitled: -
“Republic …………………………..………..Appellant
Vs.
The Transport Licensing Tribunal …Respondent
And
The Overseas Touring Co.(E.A.) Ltd
The Kenya Bus Services Ltd ….…… Interested parties Ex-parte
(The applicants”
6. This decision has also been followed consistently and I recently did so in HC Misc. 738/2003, Republic vs. Senior Resident Magistrate, Thika & another, ex -parte Nancy Wanjiru Mutitu
7. The present Application has a title dissimilar to this one as the ex-parte Applicant is Edna Janet Mwololo and the Republic is the Respondent. In the Statement of Facts the Respondent is the Director of Pensions. Clearly the ex-parte Applicant is out of sync with the Rule and I am unable to admit the Notice of Motion.
8. I hereby strike out the Notice of Motion dated 8th December 2003. I shall however exercise my discretion and make no order as to costs but further order that the ex-parte Applicant do within 21 days file a proper Application under the Rules
. 9. The same once filed should be heard by another judge as I have clearly and having heard the substance of the matter formed an opinion which is prejudicial to the Respondent/Director of Pensions. Orders Accordingly.
Dated and delivered at Nairobi this 26th day of February 2004
I. LENAOLA
Ag. JUDGE
26. 2.2004
Before Lenaola Ag. J.
Amos CC
Ruling delivered and signed in the absence of all parties.
I. LENAOLA
Ag. JUDGE