[2012] KEHC 5753 (KLR)
The application was dismissed because it was fatally defective for failing to join the Chief Magistrate, Thika, as a party, despite seeking orders against that court. Judicial review proceedings require the public body or officer whose decision is challenged to be named and served. The absence of the necessary party...
Source-derived case information.
- Citation
- [2012] KEHC 5753 (KLR)
- Parties
- Respondent: Margaret Wairimu Mbirua; Applicant: Martin Wanjala Wafula
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 139 of 2011
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application dismissed
- Legal Topics
- Judicial Review Procedure, Party Naming, Jurisdiction of Magistrate, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Wairimu Mbirua
Respondent
Martin Wanjala Wafula
Applicant
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the application for judicial review is fatally defective due to improper naming of parties and failure to join the necessary party (Chief Magistrate, Thika).
- 2 Whether the orders sought can be granted in the absence of the public body whose decision is challenged.
- 3 Whether the magistrate acted unlawfully in issuing various orders in the lower court proceedings.
Ratio Decidendi
The application was dismissed because it was fatally defective for failing to join the Chief Magistrate, Thika, as a party, despite seeking orders against that court. Judicial review proceedings require the public body or officer whose decision is challenged to be named and served. The absence of the necessary party meant the court could not grant the orders sought. The judge noted that while procedural technicalities can sometimes be overlooked, the omission of a crucial party whose actions are under review is a substantive defect that cannot be cured. The parties were advised that they could still seek recourse by way of appeal.
Court Disposition
application dismissed
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT NAIROBI
MILIMANI LAW COURTS
Judicial Review 139 of 2011
MARGARET WAIRIMU MBIRUA..............PLAINTIFF/RESPONDENT
VERSUS
MARTIN WANJALA WAFULA ................DEFENDANT/APPLICANT
JUDGMENT
On 10th June, 2011 Martin Wanjala Wafula was granted leave to commence judicial review proceedings. Through a notice of motion dated 30th June , 2011 the applicant seeks an order of certiorari to quash various orders issued on diverse dates by the magistrate in Thika Chief Magistrate Court Civil Case No. 439 of 2010, Margaret Wairimu Mbirua V Martin Wanjala Wafula. He also seeks an order of prohibition directed at the Chief Magistrate Thika to stop hearing the said civil case for lack of jurisdiction. The applicant also prays for an order transferring the case to the High Court. From the papers filed in court it is clear that the application is based on the following grounds:
1. That the magistrate acted unlawfully by issuing an order on 3/8/2010 extending a temporary injunction beyond the limit allowed by the law;
2. That the magistrate acted unlawfully on 11/4/2011 by issuing a warrant of arrest against the applicant without giving him an opportunity to show cause;
3. That the magistrate acted unlawfully on 12/4/2011 by issuing a criminal warrant of arrest against the applicant in a civil case and failing to endorse the file copy of the warrant;
4. That the magistrate acted unfairly on 30/5/2011 by refusing to extend stay orders granted on 11/5/2011 which temporarily stayed the warrant of arrest till the hearing of the main application which had been fixed for hearing on 13/6/2011 since by doing so the court had already pre-empted her decision and therefore any hearing by the same magistrate could have been in futility; and
5. That the magistrate had no jurisdiction to adjudicate over the matter.
Margaret Wairimu Mbirua who is the respondent in these proceedings opposed the application by way of a replying affidavit sworn on 29th July, 2011. It is the respondent’s argument that the proceedings are mischievous, fatally defective, and an abuse of the court process. Her affidavit gives a chronology of events in the lower court and she accuses the applicant of using these proceedings to evade punishment for acting in contempt of an injunction issued by the lower court.
I have carefully perused these proceedings and come to the sad conclusion that I will not have the opportunity of tackling the real issues. This application is wrongly titled and a very crucial party has been left out. In the notice of motion it is indicated that this matter is between
MARGARETWAIRIMU MBIRUA ….........PLAINTIFF/RESPONDENT
-VS-
MARTIN WANJALA WAFULA …...........DEFENDANT/APPLICANT.
Ringera, J (as he then was) dealt with the issue of the naming of parties in judicial review proceedings inJOTHAM MULATI WELAMONDI -VS- THE CHAIRMAN ELECTORAL COMMISSION OF KENYA, Bungoma H.C. Misc. Application No. 54 of 2002. He observed that in judicial review proceedings the applicant is the Republic and the respondent is the public body whose decision is being challenged. The person affected by the decision is named as the ex-parte applicant. Any other person who has an interest in the proceedings is always named as an interested party. In the case before me the substantive notice of motion would have been titled thus:
REPUBLIC……………………………………………………. APPLICANT
VERSUS
THE CHIEF MAGISTRATE THIKA…….……...…………...RESPONDENT
EXPARTE - MARTIN WANJALA WAFULA
MARGARET WAIRIMU MBIRURA….................... INTERESTED PARTY
Order 53 Rule 3(2) of the Civil Procedure Rules clearly provides that when the decision of a court is under attack, the presiding officer of the court which made the decision must be served. There is no evidence of such service in this matter.
In line with Article 159(2)(d) of the Constitution I sometimes overlook the titling of the proceedings so long as all the necessary parties are before the court. In this case, however, the Chief Magistrate, Thika who is supposed to act on any orders issued by this court has been left out. The orders sought are supposed to be issued against the court but the court has not been made a party to the proceedings. That makes the application fatally defective. Luckily for the parties they can still have recourse to this court by way of an appeal. I therefore dismiss the application with costs to the respondent.
Dated and signed at Nairobi this 31st day of July,2012
W.K.KORIR, J