[2011] KEHC 3568 (KLR)
The court found that although the substantive motion for judicial review was filed within the 21-day period ordered, it was not served on the applicant as required by both the court's order and Order 53 rule 3(2) of the Civil Procedure Rules. This non-compliance meant that the leave granted to operate as a stay...
Source-derived case information.
- Citation
- [2011] KEHC 3568 (KLR)
- Parties
- Applicant: Joseph Ngaruiya Mwaura; Respondent: Rahab Njuguini Kinyua
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 19 of 2009
- Procedural Posture
- Judicial Review / Ruling on Application to Vacate Leave and Stay Orders
- Outcome
- application allowed; previous orders vacated
- Judges
- SP Ouko
- Legal Topics
- Judicial Review Procedure, Service of Process, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ngaruiya Mwaura
Applicant
Rahab Njuguini Kinyua
Respondent
Procedural Posture
Judicial Review / Ruling on Application to Vacate Leave and Stay Orders
Legal Issues
- 1 Whether failure to serve the substantive motion within the time ordered invalidates the leave and stay granted.
- 2 Whether the orders of 18th March, 2009 should be vacated for non-service of the motion.
Ratio Decidendi
The court found that although the substantive motion for judicial review was filed within the 21-day period ordered, it was not served on the applicant as required by both the court's order and Order 53 rule 3(2) of the Civil Procedure Rules. This non-compliance meant that the leave granted to operate as a stay lapsed automatically. The respondent's failure to reply to the application or participate in the proceedings, coupled with the passage of nearly two years without service, indicated a loss of interest in the matter. Consequently, the court held that the orders of 18th March, 2009 should be vacated and allowed the application with costs to the applicant.
Court Disposition
application allowed; previous orders vacated
Orders
- The orders of 18th March, 2009 are vacated.
- The application is allowed with costs to the applicant.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
JUDICIAL REVIEW NO.19 OF 2009
JOSEPH NGARUIYA MWAURA……………….APPLICANT
VERSUS
RAHAB NJUGUINI KINYUA……………….RESPONDENT
RULING
On 18th March, 2009, the respondent in the present application brought chamber summons for leave to bring judicial review application in the form of certiorari to quash the decision of North Kinangop Land Dispute Tribunal in case No.028 of 2008. The respondent also sought an order that, leave, if granted to operate as a stay of proceedings.
In granting the two reliefs, Koome, J ordered:
“1 …………………………………………….
2. …………………………………………….
3. …………………………………………….
4. That the applicant to fileand serve asubstantive motion within 21 days of thedate hereof failure to do so leave granted tooperate as a stay shall lapse.”
(Emphasis supplied)
The motion was filed on 7th April, 2009 clearly within the period ordered by the court.
The applicant in the instant application who is the interested party in the judicial review application has brought the application in which he seeks that the orders issued on 18th March, 2009 be vacated for the reason that the main motion to bring judicial review proceedings has not been served upon him as ordered by the court. The instant application comes six months after leave was granted to the respondent. Despite counsel for the respondent being aware of this application, he has neither filed a reply nor participated in its argument.
I have considered the application, applicant’s counsel’s submissions and the authority cited. The court, in the order reproduced at the beginning of this ruling, made it clear that the motion be filed and served within 21 days. Only one limb (the filing) of that order has been complied with nearly two years later. That failure was not only in breach of the order whose terms were clear that the leave granted to operate as a stay would lapse automatically, but also in contravention of Order 53 rule 3(2) of the Civil Procedure Rules which, in mandatory terms, requires the motion to be served on all persons directly effected.
The consequence of failure to serve the motion is that the motion cannot be set down for hearing as the parties directly affected have not replied to it.
For these reasons, it is clear to me, from what counsel for the respondent told the court on 21st June, 2010 through another counsel that the respondent has been out of the country, the fact that no reply to this application has been filed and the absence of counsel for the respondent on the hearing date, that the respondent has lost interest in the matter. Sparing it will serve no useful purpose.
The orders of 18th March, 2009 are vacated as this application is allowed with costs.
Dated, Delivered and Signed at Nakuru this 24th day of February, 2011.
W. OUKO
JUDGE