[2022] KEELC 13745 (KLR)
The court found that the applicants failed to file the substantive Notice of Motion within the time directed by the court, despite being granted leave and receiving further directions and reminders. In the absence of a substantive application on record, the court had no basis upon which to make a determination on...
Source-derived case information.
- Citation
- [2022] KEELC 13745 (KLR)
- Parties
- Applicant: Benjamin Gitere Kimari; Applicant: Hannah Ngina Kenneth Kimari (Administrators of the Estate of the Late Kenneth Kimani Kahura); Respondent: Land Registrar Nakuru Land Registry
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Judicial Review Case E3 of 2021
- Procedural Posture
- Judicial Review / Ruling on Preliminary/procedural Application
- Outcome
- Application dismissed for want of prosecution; leave vacated; file closed.
- Judges
- FM Njoroge
- Legal Topics
- Judicial Review Procedure, Mandamus Orders, Land Registration Restrictions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Gitere Kimari
Applicant
Hannah Ngina Kenneth Kimari (Administrators of the Estate of the Late Kenneth Kimani Kahura)
Applicant
Land Registrar Nakuru Land Registry
Respondent
Procedural Posture
Judicial Review / Ruling on Preliminary/procedural Application
Legal Issues
- 1 Whether the applicants complied with the court's directions to file a substantive Notice of Motion within the stipulated period.
- 2 Whether the court could proceed to determine the matter in the absence of a substantive application on record.
- 3 Whether the leave previously granted should be vacated and the application dismissed.
Ratio Decidendi
The court found that the applicants failed to file the substantive Notice of Motion within the time directed by the court, despite being granted leave and receiving further directions and reminders. In the absence of a substantive application on record, the court had no basis upon which to make a determination on the merits of the case. Consequently, the court vacated the leave previously granted and dismissed the application, marking the file as closed. The decision was grounded in the procedural requirement that judicial review proceedings must be commenced by a substantive motion following the grant of leave, and failure to do so is fatal to the proceedings.
Court Disposition
Application dismissed for want of prosecution; leave vacated; file closed.
Orders
- The leave granted pursuant to the chamber summons dated 18/3/2021 is hereby vacated and that application is hereby dismissed.
- Each party shall bear their own costs of the proceedings.
Full Case Text
Judgment text and source record
21 paragraphs
Kimari & another v Land Registrar Nakuru Land Registry (Environment and Land Judicial Review Case E3 of 2021) [2022] KEELC 13745 (KLR) (25 October 2022) (Ruling)
Neutral citation: [2022] KEELC 13745 (KLR)
Republic of Kenya
In the Environment and Land Court at Nakuru
Environment and Land Judicial Review Case E3 of 2021
FM Njoroge, J
October 25, 2022
Between
Benjamin Gitere Kimari
1st Applicant
Hannah Ngina Kenneth Kimari (Administrators of the Estate of the Late Kenneth Kimani Kahura)
2nd Applicant
and
Land Registrar Nakuru Land Registry
Respondent
Ruling
1. The applicants moved the court through Chamber Summons dated 18/03/2021 where they sought leave to apply for an order of Mandamus“to remove and/or lift the restriction pursuant to provision of section 78 (1) & (2) of the Land Registration Act, 20212 to L.R Nakuru/Municipality Block 5/294. ”
2. The court granted the applicants leave on 22/03/2021 and ordered that the substantive motion be filed within 21 days. It is also on record that the applicants had not filed the Notice of Motion at the time the court was preparing for judgment and D. O. Ohungo J upon realizing that he could not do a judgment without the substantive application on record, opted to give directions on 27/04/2022. The said directions were sent via email to the Ex parte Applicant on 13/10/2022 but this elicited no response.
3. It is not in dispute that the court called for the Notice of Motion from the ex parte applicants several times to no avail. It is also a fact that there is currently no substantive application on record to make a determination on and it therefore leaves this court with no other option but to vacate the leave granted on 22/03/2021 and order that the file be marked as closed.
4. Consequently, I hereby issue the following orders:a. The leave granted pursuant to the chamber summons dated 18/3/2021 is hereby vacated and that application is hereby dismissed;b. Each party shall bear their own costs of the proceedings;c.This file shall be marked by the court registry as closed.
Dated, signed anddelivered atNakuru via electronic mail on this 25thday of October, 2022. MWANGI NJOROGEJUDGE, ELC, NAKURUNKR ELC JR NO. E003/21 RLNG - DF-19. 3.21/FH-22. 3.21/FBM: 25. 05. 22/LH-25. 5.22/DR-25. 10. 2022 Page 2