[2019] KEHC 10147 (KLR)
The court found that the applicants failed to provide credible evidence to support their claims of illness and inability to file the substantive motion within the prescribed time. The allegations regarding the 2nd applicant’s wife’s illness and counsel’s own illness were unsupported by any documentation or proof....
Source-derived case information.
- Citation
- [2019] KEHC 10147 (KLR)
- Parties
- Applicant: Justus Kobia Mutia; Applicant: Kirambi M’ Lituange; Applicant: Joseph Makamba; Respondent: Jacob Mantili King’ang’a; Respondent: District Land Adjudication & Settlement Officer
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 7 of 2018
- Procedural Posture
- Judicial Review / Ruling on Application to Review, Vary, or Set Aside Dismissal Order
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Judicial Review Procedure, Review of Dismissal Orders, Land Adjudication, Failure to File Within Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justus Kobia Mutia
Applicant
Kirambi M’ Lituange
Applicant
Joseph Makamba
Applicant
Jacob Mantili King’ang’a
Respondent
District Land Adjudication & Settlement Officer
Respondent
Procedural Posture
Judicial Review / Ruling on Application to Review, Vary, or Set Aside Dismissal Order
Legal Issues
- 1 Whether the applicants demonstrated sufficient grounds to warrant review, variation, or setting aside of the dismissal order of 24th July 2018.
- 2 Whether the applicants provided credible evidence for the delay in filing the substantive motion within the prescribed time.
- 3 Whether the court should exercise discretion to reinstate the dismissed judicial review application.
Ratio Decidendi
The court found that the applicants failed to provide credible evidence to support their claims of illness and inability to file the substantive motion within the prescribed time. The allegations regarding the 2nd applicant’s wife’s illness and counsel’s own illness were unsupported by any documentation or proof. Furthermore, the applicants contradicted themselves regarding the preparation of the substantive motion, and no draft or evidence of such a motion was annexed to their application. The court held that the requirements of Order 53 are mandatory, and the applicants did not demonstrate any sufficient grounds to warrant review or setting aside of the dismissal order. Consequently,...
Court Disposition
application dismissed with costs to the respondents
Orders
- The application dated 3rd August 2018 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
JUDICIAL REVIEW NO. 7 OF 2018
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF MANDAMUS, CERIORARI AND PROHIBITION
-AND-
IN THE MATTER OF LAND CONSOLIDATION ACT, CAP 283 LAWS OF KENYA
-AND-
IN THE MATTER OF LAND PARCEL NO. MUTUATI/AMWATHI 1B ADJUDICATION SECTION
BETWEEN
JUSTUS KOBIA MUTIA...................................................1ST APPLICANT
KIRAMBI M’ LITUANGE...............................................2ND APPLICANT
JOSEPH MAKAMBA........................................................3RD APPLICANT
VERSUS
JACOB MANTILI KING’ANG’A................................1ST RESPONDENT
DISTRICT LAND ADJ &
SETTLEMENT OFFICER...........................................2ND RESPONDENT
RULING
1. Before me is a Notice of Motion Application dated 3rd August 2018, and brought pursuant to the provisions of Order 12 Rule 7 Order 45 Rule1 and Order 51 of the Civil Procedure Rules, in which the Applicants seek an order to review, vary, set aside the orders of 24th July 2018, dismissing their application for Judicial Review No. 7 of 2018, for failure to file the substantive motion within time.
2. The application is supported on the grounds on the face of it and on an affidavit filed by Milly Okello, counsel who has conduct of this matter on behalf of the Applicants. It is averred that the 2nd Applicant who had been given authority to act on behalf of the other Applicants had an ailing wife and had to take her for treatment in Nairobi and that counsel had no other means of reaching the other Applicants and the 2nd Applicant could also not be reached on phone.
3. I have carefully considered this application. It was contended for the Applicants that the 2nd Applicant who was acting on behalf of the other Applicants had an ailing wife admitted in hospital in Nairobi and that by the time the court granted leave on 21st June 2018, counsel had prepared the substantive motion and upon calling the 2nd Applicant, he informed him of his predicament hence the substantive motion could not be filled for lack of filing fees and instructions, and that further later on, counsel for the Applicants also fell ill and could therefore not pursue the Applicants in order to file the substantive motion.
4. The allegations that 2nd Applicant who was acting on behalf of the other Applicants had a sick wife who was admitted in hospital in Nairobi is not supported by any evidence. Similarly, the allegations that counsel who had the conduct of this matter on behalf of the Applicants fell ill and was hence unable to pursue the Applicants was also not supported by any evidence and the same remains mere allegations.
5. The Applicants appeared to contradict themselves. Whereas at paragraph 11 of the supporting affidavit they admitted that they did not abide by the court orders of 21st June 2018, at paragraph 5, their counsel deposed that on 21st June 2018, she did prepare the substantive motion. No such substantive motion has however been annexed to this application whether in draft form or otherwise to support the Applicants’ position.
6. Similarly, the Applicants have not demonstrated or shown to the satisfaction of this court, the action that they have taken since 24th July 2018 when the suit was dismissed and the only logical inference that can be made is that no substantive motion has been prepared to date.
7. As was stated by MR. Kiongo, the state counsel on 24/7/2018, the provisions of order 53 of the Civil Procedure Rules are clear, once leave is granted, the substantive Judicial Review Motion SHALL BE MADE WITHIN 21 DAYS.
8. I find that there are no sufficient grounds to warrant a review of the court’s order of 24. 7.2018. Accordingly, the Applicants application dated 3rd August 2018, is without merit and the same is hereby dismissed with costs to the Respondents.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 13TH FEBRUARY, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Miss Soi for applicant
HON. LUCY. N. MBUGUA
ELC JUDGE