[2010] KEHC 1603 (KLR)
The court held that judicial review applications must be brought in the name of the Republic, as the orders are issued in the Republic's name and directed to the relevant parties. Failure to do so is not a mere technicality but a substantive defect that goes to the root of the application. The application before the...
Source-derived case information.
- Citation
- [2010] KEHC 1603 (KLR)
- Parties
- Applicant: Esther Cherono Chendu; Respondent: Nakuru Land Disputes Tribunal; Respondent: Chief Magistrate Nakuru; Interested Party: Kipsabo Chilgong
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 71 of 2009
- Procedural Posture
- Judicial Review / Ruling on Preliminary Objection
- Outcome
- Application struck out as fatally defective.
- Legal Topics
- Judicial Review Procedure, Naming of Parties, Preliminary Objection, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Cherono Chendu
Applicant
Nakuru Land Disputes Tribunal
Respondent
Chief Magistrate Nakuru
Respondent
Kipsabo Chilgong
Interested Party
Procedural Posture
Judicial Review / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the judicial review application is fatally defective for not being brought in the name of the Republic.
- 2 Whether failure to properly name the applicant is a mere error of form or a substantive defect.
Ratio Decidendi
The court held that judicial review applications must be brought in the name of the Republic, as the orders are issued in the Republic's name and directed to the relevant parties. Failure to do so is not a mere technicality but a substantive defect that goes to the root of the application. The application before the court, having been brought in the name of the individual applicant rather than the Republic, was therefore fatally defective. The court upheld the preliminary objection and struck out the application with costs to the Interested Party.
Court Disposition
Application struck out as fatally defective.
Orders
- The preliminary objection is upheld.
- The application is struck out with costs to the Interested Party.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Judicial Review 71 of 2009
ESTHER CHERONO CHENDU............................APPLICANT
VERSUS
NAKURULANDDISPUTESTRIBUNAL.....1ST RESPONDENT
CHIEF MAGISTRATE NAKURU..............2ND RESPONDENT
AND
KIPSABO CHILGONG.........................INTERESTED PARTY
RULING
This is a Judicial Review application brought under Order 53 Rule 3(1) & (2) of the Civil Procedure Rules. Kipsabo Chilgong, the Interested Party has challenged its competence on the ground inter alia that has taken out and drawn, it is incompetent, bad in law and fatally defective.
Judicial Review orders are issued in the name of the Republic at the instance of the applicant and are directed to the person or persons who are to comply with them. The Republic cannot therefore be the applicant and respondent in the same matter. After obtaining leave, the substantive applications should be made in the name of the Republic-Farmers Bus Service & Others Vs The Transport Licensing Appeals Tribunal, [1959] EA 779. Failure to bring such an application in the name of the Republic is not a mere error of form but goes to the substance of the matter-Ndete Vs Chairman Land Disputes Tribunal, [2002] KLR 392and District Tribunal Koibatek & Others, Nakuru H.C. J.R. No. 7 of 2009.
This application having been brought in the name of the applicant is therefore fatally defective. In the circumstances, I uphold this preliminary objection and strike it out with costs to the Interested Party.
DATED and delivered this 20th day of July, 2010
D. K. MARAGA
JUDGE.