[2002] KEHC 1166 (KLR)

[2002] KEHC 1166 (KLR)

The court held that the application was fatally defective for two reasons: first, it was not made in the name of the Republic as required for judicial review proceedings seeking certiorari, and second, it sought a prerogative writ of certiorari, which the High Court is expressly barred from issuing by statute. The court found that these were not mere errors of form but substantive defects that could not be cured by the general provisions of the Civil Procedure Rules. Order 53 is a special jurisdiction governed by the Law Reform Act, and the requirements for form and relief are mandatory. As such, the objections by the respondent and interested party were upheld, and the motion was struck...

Citation
[2002] KEHC 1166 (KLR)
Parties
Applicant: Henry Amwayi Ndete; Respondent: Chairman Land Disputes Tribunal; Interested Party: Elizabeth Anyoklo Okoyana
Court
High Court
Court Station
High Court at Bungoma
Jurisdiction
Kenya
Judgment Date
9 July 2002
Case Number
Civil Miscellaneous Application 79 of 2002
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Outcome
motion struck out with costs
Legal Topics
Judicial Review Procedure, Prerogative Orders, Form of Application, Registered Land Disputes
Source Language
English
Civil Procedure Land and Property Judicial Review Procedure Prerogative Orders Form of Application Registered Land Disputes

Case Brief

Summary, issues, holding and outcome

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Parties

Henry Amwayi Ndete

Applicant

Chairman Land Disputes Tribunal

Respondent

Elizabeth Anyoklo Okoyana

Interested Party

Procedural Posture

Miscellaneous Application / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether an application for certiorari must be made in the name of the Republic.
  2. 2 Whether the High Court can issue a prerogative writ of certiorari as sought under the Law Reform Act and Civil Procedure Rules.
  3. 3 Whether the defects in the application are errors of form or substance.

Ratio Decidendi

The court held that the application was fatally defective for two reasons: first, it was not made in the name of the Republic as required for judicial review proceedings seeking certiorari, and second, it sought a prerogative writ of certiorari, which the High Court is expressly barred from issuing by statute. The court found that these were not mere errors of form but substantive defects that could not be cured by the general provisions of the Civil Procedure Rules. Order 53 is a special jurisdiction governed by the Law Reform Act, and the requirements for form and relief are mandatory. As such, the objections by the respondent and interested party were upheld, and the motion was struck...

Court Disposition

motion struck out with costs

Orders

  • The motion on notice is struck out.
  • Costs awarded to the respondent and the interested party.