[2011] KEHC 166 (KLR)
The application was found to be incompetent because the verifying affidavit filed in support of the Chamber Summons did not contain any facts, contrary to the requirements of Order 53 Rule 1(2) of the Civil Procedure Rules and established judicial authority. Instead, the facts were improperly contained in the...
Source-derived case information.
- Citation
- [2011] KEHC 166 (KLR)
- Parties
- Applicant: Geoffrey Nganga Nyoike; Applicant: Peter Mburu Ngugi; Applicant: Hosea Muthama; Respondent: Naivasha Land Dispute Tribunal
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 56 of 2011
- Procedural Posture
- Judicial Review Application / Leave to Apply for Order of Certiorari
- Outcome
- Application struck out as incompetent with costs to the respondent.
- Legal Topics
- Judicial Review Procedure, Certiorari, Verifying Affidavit Requirements, Land Dispute Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Geoffrey Nganga Nyoike
Applicant
Peter Mburu Ngugi
Applicant
Hosea Muthama
Applicant
Naivasha Land Dispute Tribunal
Respondent
Procedural Posture
Judicial Review Application / Leave to Apply for Order of Certiorari
Legal Issues
- 1 Whether the Chamber Summons application for leave to apply for certiorari was competent under Order 53 Civil Procedure Rules.
- 2 Whether the verifying affidavit filed in support of the application contained the necessary facts as required by law.
- 3 Whether failure to disclose parties and proper format rendered the application fatally defective.
Ratio Decidendi
The application was found to be incompetent because the verifying affidavit filed in support of the Chamber Summons did not contain any facts, contrary to the requirements of Order 53 Rule 1(2) of the Civil Procedure Rules and established judicial authority. Instead, the facts were improperly contained in the statement. Furthermore, the application failed to disclose the parties and did not follow the prescribed format for judicial review applications as set out in binding precedent. These procedural defects were fatal, and the court found no need to consider the merits of the application. The application was accordingly struck out with costs.
Court Disposition
Application struck out as incompetent with costs to the respondent.
Orders
- The Chamber Summons application dated 9/5/2011 is struck out as incompetent.
- Applicants to pay costs to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
ATNAKURU
HCC JUDICIAL REVIEW NO 56 of 2011
GEOFFREY NGANGA NYOIKE
PETER MBURUNGUGI &
HOSEA MUTHAMA……………….........................………………..APPLICANTS
VERSUS
NAIVASHA LAND DISPUTE TRIBUNAL……......................…RESPONDENT
R U L I N G
By the Chamber Summons dated 9/5/2011, the applicants PeterMburu Ngugi, Geoffrey Nganga Nyoike and Hosea Muthama
seek the leave of the court to applyfor an order of Certiorari to remove into the High Court andquash the proceedings and award of the Naivasha Land Disputes Tribunal dated 15/3/2011, in Tribunalcase no 139/09. They also seek an order that the leave do operate as stay of the decree in Naivasha Misc Civil application no 38/2010 given on 1st April 2011.
Theapplication is supported by a statement dated 9/5/2011 and a verifying affidavitsworn by Peter Mburu Ngugi on the same date. He also filed a supplementary affidavitin reply to the replying affidavit sworn by Interested Party.
When Mr Mwaniki, Counsel for the applicantappeared before Justice Ouko on 10/5/2011, the Judge directed counsel to servethe application so that the Chamber Summons application can be heard inter partes.
Some Interested Parties filed a reply to this application but the court did not hear them because under Order 53, it is the Notice of Motion that is served and all persons interested or those that may be affected by the court’s orders in a Judicial Review application. At the leave stage, only the Respondent should be served. That is why the Interested partieshave no audience at this stage.
The Respondent did not appear and the hearing proceeded ex parte. Only the DC Naivasha was served on behalf of the Land Disputes Tribunal. The Principal Magistrate’s Court was not served.
I have considered the application and in my view, it is incompetent and offends provisions of Order 53 Civil Procedure Rules. Order 53 rule 1(2) requires an applicant to file a Chamber Summons application accompaniedby a statutory statement and verifying affidavit. It is the verifying affidavitthat contains the facts that verify the statement . I am guided by the Court of Appeal decision inCOMMISSIONER GENERAL KRA VRS SILVANO ONEMA OWAKI MISC A 39/1999,in which the court discussed Order 53 Rule 1(2) CPR. The court said:-
“ we would observe that it is the verfying affidavit not the
Statement to be verified , which is of evidential value in an application for Judicial Review. That appears to be the meaningof Rule 1(2) of order 53Rule 2. This positionis confirmed by the following passages from the Supreme Court Practice 1976 Vol 1 at paragraph 53/117:
“Theapplication for leave “ By a statement” in the affidavit (see RV WANDSWORTH JJ ex P Read (1942) K.R .281) “ The statement should contain nothing more than the name and description of the applicant, the relief sought, and the grounds on which it is sought it is not correct to lodge a statement of all the facts, verified by an affidavit”
In the instant case, the verifyingaffidavit filed in support of the Chamber Summons is four paragraphed and does not contain any facts. Instead the facts are contained at paragraph 3 of the statement. The want of facts to support the applicationrenders the whole application incompetent .
At a cursory look at the application, the parties to this application are not disclosed. In the case of FARMERS BUS SERVICES VRS TRANSPORT LICENSING APPEAL TRIBUNAL (1959) EA 779, the East African Court of Appeal set out the format ofa Judicial Review application both at the leave stage and the Notice of Motion of Stage. That has become the practiceand was adopted in the case of JOTHAM MULATI WELAMONDI VRS CHAIRMAN ELECTORAL COMMISSIONOF KENYA (2002) 1KLR 486, where Justice Ringera struck out a Judicial Review application for being incompetent and went ahead to set out the format of a Judicial Review applications both at leave and Notice of Motion stage. The application before the Court is incompetent and this Courtfinds no need to consider the merits. It is hereby struck out with costs.
DATED THIS 22nd DAY OF JUNE 2011
RPV WENDOH
JUDGE
PRESENT
MS Maija holdingbrief for Mwaniki
N/A For defendant
CC: Kennedy Oguma