[2010] KEHC 3145 (KLR)
The court found that while the motion for judicial review was filed within the prescribed 21 days, the crucial requirement of service was not met. The respondent failed to serve the notice of motion on the applicant and the respondent in the judicial review application within the period stipulated by the court's...
Source-derived case information.
- Citation
- [2010] KEHC 3145 (KLR)
- Parties
- Applicant: Ismail Kibet Hassan; Respondent: Nakuru Kadhi Court
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 56 of 2009
- Procedural Posture
- Judicial Review / Ruling on Application to Set Aside Leave and Stay Orders
- Outcome
- application allowed; previous orders set aside
- Judges
- SP Ouko
- Legal Topics
- Judicial Review Procedure, Service of Process, Leave to Apply, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ismail Kibet Hassan
Applicant
Nakuru Kadhi Court
Respondent
Procedural Posture
Judicial Review / Ruling on Application to Set Aside Leave and Stay Orders
Legal Issues
- 1 Whether the respondent complied with the court's order to file and serve the notice of motion within the prescribed time.
- 2 Whether failure to serve the notice of motion within the required period invalidates the leave and stay orders previously granted.
Ratio Decidendi
The court found that while the motion for judicial review was filed within the prescribed 21 days, the crucial requirement of service was not met. The respondent failed to serve the notice of motion on the applicant and the respondent in the judicial review application within the period stipulated by the court's order. The subsequent extension of orders and appearances in court could not override the mandatory legal requirement for timely service. The failure to serve the notice of motion until a year after leave and stay were granted constituted a fundamental breach of procedural rules, justifying the setting aside of the orders made on 31st July, 2007.
Court Disposition
application allowed; previous orders set aside
Orders
- The application dated 19th August, 2008 is allowed.
- The orders of 31st July, 2007 are set aside.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Judicial Review 56 of 2009
ISMAIL KIBET HASSAN……………………….APPLICANT
VERSUS
NAKURU KADHI COURT………………….RESPONDENT
RULING
The Respondent in the instant motion on notice dated 19th August, 2008brought an application on31st July, 2009for leave to institute judicial review proceedings in the form of certiorari to quash the decision of the Kadhi in Nakuru Kadhi’s Court Civil Case No.18 of 2006. The application also sought that leave if granted was to operate as a stay of the judgment dated22nd September, 2006and the decree dated22nd February, 2007.
In granting those prayers, the court (Nyamu, J as he then was) made the following extracted order (in pertinent part):
“1. THAT leave be and is hereby granted to the
applicant to institute Judicial Review proceedings for an Order of Certiorari to bring to the High Court to quash the Nakuru Kadhi’s courts Judgment dated 22nd September, 2006 and Decree dated 23rd February, 2007 in Nakuru Kadhi’s Court Civil Case No.18 of 2006.
2. ………………………………………………...
3. ………………………………………………...
4. THAT the application be filed within 21 days and served within 8 days failing which the orders granted shall automatically lapse.”
The interested party has brought the present application seeking that the orders made on 31st July, 2007 be vacated on the ground that the respondent has failed to comply with those orders; that she was served with the orders of 31st July, 2007 but not the application. I have not seen any response from the respondent in this application or from the respondent in the judicial review application. The latter’s counsel supports this application and confirms having been served with the substantive motion on 28th May, 2008.
Learned counsel for the respondent herein conceded the terms of the order of 31st July, 2007 limiting to 21 days the period for filing the motion and 8 days for serving it, but submitted that that notwithstanding, parties have subsequently appeared in court and the order extended. Order 53(3)(1) of the Civil Procedure Rules provides that:
“3(1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within 21 days by notice of motion to the High Court and there shall, unless the judge granting
leave has otherwise directed, be at least eight clear days between the service of the notice ofmotion and the day named therein for the hearing” (Emphasis supplied)
Two questions arise from the above provision. Was the motion filed within twenty one (21) days and were there eight clear days between service and the date for hearing of the motion?
Leave and stay were granted on 31st July, 2007and the motion filed on21st August, 2007. Computing time in accordance with the provisions of section 57 of the Interpretation and General Provisions Act (cap 2) the motion ought to have been filed not later than27th August, 2007. It was filed on21st August, 2007, well within the prescribed time.
The eight days limit to serve the motion imposed by the court (Nyamu, J) is not provided for under order 53. What is provided for is that there must be eight clear days between the date of service and the date set for the hearing of the motion.
But of significance in this matter is the question of service; that is what the applicant has complained of; that after leave and stay were granted, the respondent served these orders upon her but not the notice of motion which was served on 23rd August, 2008, one year after leave and stay were granted and a few days after the filing of this
application. Order 53 attaches great importance to service of the application upon parties who may be affected by the proceedings.
Relevant to this matter is subrule (2) of rule 3 which provides that:
“(2) The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court,………………………………………………………………………………………………. the notice of motion shall be served on the presiding officer of that court and on all parties to the proceedings”
It is conceded that there was no service either on the applicant or the respondent in the judicial review application.
The fact that orders have subsequently been extended cannot oust a clear requirement of the law. The motion was not served at all until this application was brought.
For these reasons, the application dated 19th August, 2008 is allowed and the orders of 31st July, 2007 set aside. Costs to the applicant and the respondent in the judicial review application.
Dated, Signed and Delivered at Nakuru this 5th day of February, 2010.
W. OUKO
JUDGE