[2011] KEHC 650 (KLR)
The court held that compliance with Order 53 Rule 3(1) of the Civil Procedure Rules is mandatory. The applicant, having failed to file the substantive motion for judicial review within 21 days of the grant of leave, contravened the clear procedural requirement. The court found that the use of the word 'shall' in the...
Source-derived case information.
- Citation
- [2011] KEHC 650 (KLR)
- Parties
- Applicant: Loyford Njagi Mwiandi; Respondent: Antony Murithi M’Ithari; Interested Party: Muthambi Division Land Dispute Tribunal
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 42 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; proceedings struck out; stay vacated; costs to respondent
- Judges
- AN Makau
- Legal Topics
- Judicial Review, Order 53 Procedure, Leave to Apply, Striking Out Proceedings, Land Dispute Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Loyford Njagi Mwiandi
Applicant
Antony Murithi M’Ithari
Respondent
Muthambi Division Land Dispute Tribunal
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether failure to file a substantive motion within 21 days after leave under Order 53 Rule 3(1) of the Civil Procedure Rules is fatal to the proceedings.
- 2 Whether the stay of execution granted on leave lapses when the substantive motion is not filed within the prescribed period.
Ratio Decidendi
The court held that compliance with Order 53 Rule 3(1) of the Civil Procedure Rules is mandatory. The applicant, having failed to file the substantive motion for judicial review within 21 days of the grant of leave, contravened the clear procedural requirement. The court found that the use of the word 'shall' in the rule makes the time limit peremptory and not subject to extension. Consequently, the proceedings were struck out, and the stay of execution granted on the basis of the leave was vacated. The respondent was awarded costs. The court emphasized that there was no pending matter before it as the leave had lapsed and the stay was no longer available to the applicant.
Court Disposition
preliminary objection upheld; proceedings struck out; stay vacated; costs to respondent
Orders
- The proceedings in this Misc. Civil cause are struck out for contravention of Order 53 Rule 3(1).
- The stay of execution of the award in L.D.T No.22 of 2010 by virtue of leave granted is vacated or discharged forthwith.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC. CIVIL CASE NO. 42 OF 2011
IN THE MATTER OF MUTHAMBI DIVISION LAND DISPUTE TRIBUNAL
CASE NO. 22 OF 2010
AND
IN THE MATTER OF LAND PARCEL NO.MUTHAMBI/GATUA/463
LOYFORD NJAGI MWIANDI...............................................................EXPARTE/APPLICANT
VERSUS
ANTONY MURITHI M’ITHARI..........................................................................RESPONDENT
MUTHAMBI DIVISION LAND DISPUTE TRIBUNAL.................................INTERESTED PARTY
R U L I N G
The exparte applicant moved this court through an exparte Chamber Summons under Order 53 Rule 1, 2 and 3 of Civil Procedure Rules and Section 8 and 9 of The Land Reform Act, through an application dated 20th June, 2011.
The exparte applicant was seeking leave to apply for an Order of Judicial Review (certiorari) to bring the award in LDT NO.MUTHAMBI Division Land Dispute Tribunal Case No.22 of 2010 and quash the same.
The exparte applicant also requested the leave so granted to operate a stay of execution of the award in LDT No.22 of 2010 pending hearing and determination of the Notice of Motion. On 27th June, 2011 the Counsel for the exparte applicant M/S L. Kimathi Kiara & Co. Advocates appeared before my Sister Lady Justice Mary Kasango who granted the exparte applicant leave to file a substantive motion and leave granted was ordered to operate as a stay.
Under Order 53 Rule 3(1) it is provided:-
3. (1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.
The exparte applicant after being granted leave did not proceed to file the substantive motion within 21days. On 30th September, the firm of M/S E.P.Omayo & Co. Advocates filed notice to act for the respondent and filed at the same time notice of Preliminary Objection to the entire proceedings in this case.
The preliminary objection raises the following point of law:-
“1. That the exparte applicant has contravened the provisions enshrined under Order 53 Rule (3) 1 of Civil Procedure Rules.”
When the matter came for hearing M/s Kimathi Kiara & Co. Advocates who had been served with the Preliminary Objection for hearing as per affidavit of service dated 08/12/11 did not attend. Consequently the application was ordered to proceed exparte.
Mr. Omayo Advocate argued that since leave was granted on 27th June, 2011 to file substantive motion for prerogative orders of certiorari and which leave was to operate as stay of execution, the exparte applicant has not filed the main motion within the prescribed period for 21days as per Order 53 Rule 3 (1) of Civil Procedure Rules.
He submitted the failure to file the main motion should lead to striking out the pleadings and stay of execution granted to be vacated and/or discharged.
I have perused the court file and indeed it is true that leave was granted on 27th June, 2011. It is also correct that substantive motion which ought to have been filed within 21 days from 27th June, 2011 has not been filed. It is almost six months since leave was granted and no action has been taken.
Under Order 53 Rule 3(1) the application is supposed to be filed within 21 days. The Section is worded partly as follows:-
“The application shall be made within 21 days by Notice of Motion to the High Court”.
The word “shall” is used herein which means it is mandatory that the substantive motion must be filed within 21 days from the date of granting leave and the period cannot be extended beyond 21 days.
I agree with Counsel for the respondent that as the exparte applicant has to date not filed the substantive motion incompliance with Order 53 Rule 3(1) Civil Procedure Rules, the proceedings ought to be struck out. There is no pending matter before this court and the leave that was granted is spent or is no longer in force and as such the stay which was based on the leave is not long available to the applicant.
In the circumstances, the preliminary point of law is upheld and I do proceed to make the following orders.
1. The exparte applicant has contravened the provisions enshrined under Order 53 Rule 3(1) and the proceedings in this Misc. Civil cause are ordered struck out.
2. That the stay of execution of the award in L.D.T No.22 of 2010 by virtue of leave granted is vacated or discharged forthwith.
3. That the respondent gets costs of this application.
DATED AND DELIVERED AT MERU THIS 19TH DAY OF DECEMBER, 2011
J. A. MAKAU
JUDGE
DELIVERED IN OPEN COURT IN PRESENCE OF:
1. Mr. Gitonga hb for Omayo for the Respondent
J. A. MAKAU
JUDGE