[2023] KEHC 26020 (KLR)

Kihoro v Director General Department of Immigration (Civil Miscellaneous Application E254 of 2021) [2023] KEHC 26020 (KLR) (Civ) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26020 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous Application E254 of 2021

AN Ongeri, J

December 1, 2023

Between

Wanyiri Kihoro

Applicant

and

Director General Department Of Immigration

Respondent

Ruling

1. The Interested Party (IP) filed a preliminary objection dated 4/8/2023 in the following terms;i.That there is no suit properly filed before this honourable court for determination.ii.That the present Miscellaneous Civil Application no. E254 of 2021 has been commenced through unprocedural means and thus it is fatally defective and incapable of obtaining the orders sought.iii.That the application before this honourable court is in contravention of Article 159 of the Constitution of Kenya 2010, Sections 1A and 1B of the Civil Procedure Rules, 2010 of commencement of a suit and should therefore be rejected.iv.That the Miscellaneous Civil Application No. E254of 2021 is fatally defective, incompetent, bad in law and should be struck out with costs to the respondent.

2. The parties filed written submissions as follows; the respondent submitted that the applicant commenced this suit by way of miscellaneous application dated 24/5/2021 for orders seeking to release information, bio data and other relevant immigration information which the department is holding about the 3rd plaintiff to be used in connection with ELC 517 of 2017.

3. The respondent submitted that the applicant disclosed that this suit emanates from a suit in 2017 he failed to make an application in the already existing suit with the parties. The likelihood that this miscellaneous application could likely be res judicata. This suit is neither made vide a plaint, petition of an originating summon. A notice of motion is none of the methods recognized in law of originating a suit. The applicant has therefore tried to access justice by using shortcuts and this application ought to be dismissed.

4. The respondent argued that this miscellaneous application lacks any basis as it is not anchored on any pleadings at all. In fact the applicant ought to have filed the miscellaneous application in the suit in which it is based and not an independent application.

5. The proposed interested party in his submissions agreed with the respondents and added that the application before this court is premised on Order 51 (1) (4) of the Civil Procedure Rules 2010. It was his argument therefore that there is no suit properly filed on record and the application filed is not founded on any suit and the same must fail.

6. The interested party contended that the Preliminary Objection herein raises issues of law, that the manner in which the proceedings were instituted goes down to fundamental principles of procedure. The proceedings are therefore a nullity and should be dismissed at the first instance.

7. The applicant on the other hand submitted that before they filed the Notice of Motion, they wrote a letter to the 3rd plaintiff in ELC No. 517 of 2017 to provide information connected with the litigation in the suit. When there was no response they sought refuge in the courts. In the last years, however they have not gotten anywhere as their application remains pending.

8. I find that the parties are raising issues that can only be ventilated in evidence.

9. The preliminary objection is dismissed for want of merit.

10. The parties are directed to file submissions in the application dated 6/7/2021 within 14 days of this date.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF DECEMBER, 2023. A. N. ONGERIJUDGEIn the presence of:........................ for the applicant........................ for the Respondent