[2002] KEHC 264 (KLR)
The court found that the applicant failed to comply with the mandatory procedural requirement under Order 53 Rule 4(1) of the Civil Procedure Rules by not serving the statement and affidavit with the Notice of Motion. As a result, the Notice of Motion was unsupported and could not proceed. However, since the...
Source-derived case information.
- Citation
- [2002] KEHC 264 (KLR)
- Parties
- Applicant: Juma Omar Keah; Respondent: Permanent Secretary Office of the President
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 11 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Procedural Compliance
- Outcome
- Application stayed pending compliance with Order 53 Rule 4(1) of the Civil Procedure Rules.
- Judges
- CA Otieno
- Legal Topics
- Judicial Review Procedure, Service of Process, Affidavit Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juma Omar Keah
Applicant
Permanent Secretary Office of the President
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Procedural Compliance
Legal Issues
- 1 Whether the applicant complied with Order 53 Rule 4(1) of the Civil Procedure Rules regarding service of the statement and affidavits with the Notice of Motion.
- 2 Whether the Notice of Motion can proceed in the absence of supporting documents as required by the rules.
Ratio Decidendi
The court found that the applicant failed to comply with the mandatory procedural requirement under Order 53 Rule 4(1) of the Civil Procedure Rules by not serving the statement and affidavit with the Notice of Motion. As a result, the Notice of Motion was unsupported and could not proceed. However, since the respondent did not attend or oppose, the court opted not to dismiss or strike out the application but instead stayed it until the applicant strictly complies with the procedural rule.
Court Disposition
Application stayed pending compliance with Order 53 Rule 4(1) of the Civil Procedure Rules.
Orders
- The Notice of Motion is stayed until the applicant complies strictly with Order 53 Rule 4(1) of the Civil Procedure Rules.
- No order as to costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISCELLANEOUS 11 OF 2001
JUMA OMAR KEAH............................................................APPLICANT
- Versus -
PERMANENT SECRETARYOFFICE OF THE PRESIDENT...RESPONDENT
R U L I N G
This is an application by way of Notice of Motion. It is dated 28th May 2001. It is brought under Order 53 Rule 3 of the Civil Procedure Rules. Although it says it is based on the statement filed on 24th January 2001 together with Affidavit of Mohamed Faki Khatib dated 24th January 2001, the same statement and Affidavit were not annexed to the Application itself. I have perused the two Affidavits of service in the file. The first one is sworn on 4th September 2001. All it says at paragraph 2 is that a copy of Notice of Motion dated 28th May 2001 was served upon the Attorney General on 4th June 2001 and was accepted and copy stamped. That stamped copy is not in the file and there is no evidence that Order 53 rule 4(1) was complied with by the Applicant. That rule states as follows:
“4(1) copies of the statement accompanying the Application for leave shall be served with the notice of motion, and copies of any Affidavits accompanying the application for leave shall be supplied on demand ……”
The second Affidavit is on service of hearing Notice. No copy of the stamped hearing notice was filed but that is not important for my decision. Further the Notice of Motion did not on its own contain any supporting Affidavit so that as the Notice of Motion was not served with copies of statement filed for leave, the Notice of Motion remained hanging, completely unsupported in any way.
As the Respondent did not attend before me for hearing, I will not dismiss or strike out this Notice of Motion. I will stay it till the Applicant complies with order 53 rule 4(1) strictly. No order as to costs. Dated at Mombasa this 7th day of March, 2002.
J.W. Onyango Otieno
JUDGE