https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2000

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI** **JUDICIAL REVIEW APPLICATION NO. E011 OF 2025** **KENYA UNION OF CLINICAL OFFICERS……………………APPLICANT** **VERSUS** **CHIEF OFFICER HEALTH SERVICES** **COUNTY GOVERNMENT OF MARSABIT………………1ST RESPONDENT** **MARSABIT COUNTY PUBLIC SERVICE BOARD……..2ND RESPONDENT** **COUNTY GOVERNMENT OF MARSABIT…………..….3RD RESPONDENT** **RULING** 1. Before this Court for determination is the Respondents' Notice of Preliminary Objection dated 16th June 2026, by which they seek to strike out the Applicant's Chamber Summons dated 16th December 2025 on the following grounds: 2. ***THAT there is no pending application before this Honourable Court capable of determination, the Chamber Summons application having already been heard and determined by the Court.*** 3. ***THAT the Applicants have acted in breach of the express directions and orders of Hon. Lady Justice Linnet Ndolo issued on 19th December 2025 by failing to file and serve the substantive Notice of Motion within the timelines prescribed by the Court.*** 4. ***THAT the Applicants’ failure to file the substantive Notice of Motion within the stipulated period constitutes a violation of both the Court’s directions and the mandatory provisions of Order 53 Rule 3(1) of the Civil Procedure Rules, thereby rendering the proceedings incompetent and a nullity ab initio.*** 5. ***THAT no substantive Notice of Motion has been filed in the Court’s Case Tracking System (CTS) within the prescribed statutory and court-directed timelines, and consequently there exists no competent suit or application upon which this Honourable Court can exercise its jurisdiction or render a determination.*** 6. ***THAT in the absence of a substantive Notice of Motion, the judicial review proceedings herein are unsustainable in law and are liable to be struck out.*** 7. ***THAT the application and the entire judicial review proceedings constitute an abuse of the process of this Honourable Court and ought to be struck out with costs.*** 8. It is worth noting that the Applicant uploaded a Replying Affidavit in opposition to the Respondents' Preliminary Objection through the Court's online filing portal. However, the requisite filing fees in respect of the affidavit were not paid. Consequently, the affidavit is deemed not to have been duly filed. 9. On 18th June 2026, the Court directed that the Preliminary Objection be canvassed by way of written submissions. **Submissions** 1. In support of the Preliminary Objection, the Respondents have submitted that the Applicant obtained leave of the Court on 19th December 2025. That, despite the express provisions of Order 53 Rule 3(1) and the directions issued by the Court, the Applicant failed to file and serve the substantive Notice of Motion within the prescribed timelines. On this score, the Respondents have contended that there is no substantive application before the Court upon which it can exercise its judicial mandate or render a determination. 2. It is the Respondents’ position that non-compliance with the mandatory provisions of Order 53 Rule 3(1) renders the proceedings incompetent and liable to be struck out. 3. Placing reliance on the cases of ***Dynamic Chemicals Limited & 4 Others versus Director of Public Prosecutions & Another, Judicial Review Application No E270 of 2025*** and ***Wilson Njuguna Gakuru &Another versus The National Transport and Safety Authority & 2 Others, Judicial Review Case No. 42 of 2016,*** the Respondents have maintained that in the absence of a substantive Notice of Motion, there are no competent proceedings before this Honourable Court. 4. According to the Respondents, leave granted under Order 53 Rule 1 is merely permissive and does not, in itself, constitute a judicial review application. They maintain that until a substantive Notice of Motion is filed, there is no suit properly before the Court. 5. In the Respondent’s view, compliance with Order 53 Rule 3(1) is mandatory and not a procedural technicality capable of being cured under Article 159(2)(d) of the Constitution. 6. Citing the decision in ***Owners of the Motor Vessel “Lillian S” versus Caltex Oil (Kenya) Ltd, [1989] KECA 48 (KLR),*** the Respondents have argued thatthere being no substantive Notice of Motion before the Court, there are no competent proceedings upon which the Court may exercise its jurisdiction. 7. Whereas the Applicant uploaded its written submissions in respect of the instant Preliminary Objection through the Court's online filing portal, it failed to pay the requisite filing fees. Consequently, the submissions are deemed not to have been duly filed. **Analysis and Determination** 1. The Respondents contend that, although the Applicant was granted leave on 19th December 2025 to institute judicial review proceedings, it failed to file and serve the substantive Notice of Motion within the prescribed period, contrary to ***Order 53 Rule 3(1) of the Civil Procedure Rules*** and the directions issued by the Court. On that basis, the Respondents argue that there is no substantive application properly before the Court upon which it can exercise its judicial mandate or render a determination. 2. A perusal of the record reveals that, by a Chamber Summons dated 16th December 2025 filed in ***Nyeri Judicial Review Application No. E011 of 2025***, the Applicant sought leave to institute judicial review proceedings for an order of certiorari to quash the Respondents' decisions, directives and resolutions redeploying nineteen (19) of its members, as communicated in the letter dated 4th December 2025. 3. The record further shows that, on 19th December 2025, the Court granted the Applicant leave to commence judicial review proceedings and directed that the substantive Notice of Motion be filed and served within fourteen (14) days, with the Respondents being granted a corresponding period of fourteen (14) days after service within which to file their response. 4. It is apparent that, instead of filing the substantive Notice of Motion within the file in which leave had been granted, the Applicant instituted it as a separate cause, being ***Nyeri Judicial Review Application No. E002 of 2026***. This position was brought to the Court's attention by the Applicant's representative, Mr. Ombayo, on 17th March 2026, whereupon the Court directed that the two (2) files be put together. 5. The Court further notes that the heading of the Notice of Motion dated 5th January 2026 in ***Nyeri Judicial Review Application No. E002 of 2026*** expressly states that it was filed pursuant to the leave granted on 19th December 2025 and the directions issued in ***Nyeri ELRC Judicial Review Application No. E011 of 2025.*** 6. It therefore follows that the Notice of Motion dated 5th January 2026, filed in ***Nyeri Judicial Review Application No. E002 of 2026*** constitutes the substantive Motion instituted pursuant to the leave granted by the Court on 19th December 2025. 7. What this also means is that once leave was granted and the substantive Motion filed, the proceedings commenced by way of the Chamber Summons had served the purpose for which they were instituted. In that regard, the leave proceedings stood spent. 8. In the circumstances, the proper course is to mark the Chamber Summons dated 16th December 2025 as spent, rather than strike it out or dismiss it as urged by the Respondents in their Preliminary Objection dated 16th June 2026. 9. The total sum of my consideration is that the Respondents' Preliminary Objection cannot be sustained and it is hereby overruled with no order as to costs. **DATED, SIGNED** and **DELIVERED** at **NYERI** this **3rd** dayof **July** 2026 ……………………………… **STELLA RUTTO** **JUDGE** **In the presence of**: Ms. Ngumbao instructed by Dr. Ataka for the Applicant No appearance for the Respondents Ndati Court Assistant **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of **the Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of **Section 1B** of the **Civil Procedure Act (Chapter 21 of the Laws of Kenya)** which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **STELLA RUTTO** **JUDGE**