[2016] KEELC 755 (KLR)
The court found that the ex parte applicant failed to file the required Notice of Motion within the statutory 21-day period after leave was granted. This omission is fatal to the judicial review proceedings, as compliance with procedural timelines is mandatory. The absence of a substantive motion meant there was no...
Source-derived case information.
- Citation
- [2016] KEELC 755 (KLR)
- Parties
- Applicant: Morris Kirema M'Ituru; Respondent: Tigania East District Land Adjudication and Settlement Officer; Respondent: Attorney General; Interested Party: James M'Amanja M'Rukunga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 5 of 2014
- Procedural Posture
- Judicial Review / Ruling on Preliminary Objection/application to Strike Out
- Outcome
- Application allowed. Judicial review proceedings struck out for non-compliance with mandatory procedural requirements.
- Legal Topics
- Judicial Review Procedure, Land Adjudication Disputes, Notice of Motion Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Morris Kirema M'Ituru
Applicant
Tigania East District Land Adjudication and Settlement Officer
Respondent
Attorney General
Respondent
James M'Amanja M'Rukunga
Interested Party
Procedural Posture
Judicial Review / Ruling on Preliminary Objection/application to Strike Out
Legal Issues
- 1 Whether the ex parte applicant failed to file and serve a Notice of Motion within the mandatory 21 days after grant of leave.
- 2 Whether failure to file the Notice of Motion renders the judicial review proceedings incompetent and liable to be struck out.
- 3 Whether the stay orders granted should be discharged due to procedural irregularity.
Ratio Decidendi
The court found that the ex parte applicant failed to file the required Notice of Motion within the statutory 21-day period after leave was granted. This omission is fatal to the judicial review proceedings, as compliance with procedural timelines is mandatory. The absence of a substantive motion meant there was no competent application before the court, and the stay orders previously granted were irregular. Consequently, the court allowed the Interested Party's application to strike out the proceedings, discharged the stay orders, and awarded costs to the Interested Party.
Court Disposition
Application allowed. Judicial review proceedings struck out for non-compliance with mandatory procedural requirements.
Orders
- The judicial review proceedings are struck out.
- The stay orders granted on 12 March 2014 are discharged.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
JUDICIAL REVIEW NO 5 OF 2014
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR A JUDICILA REVIEW ORDER OF CERTIORARI
AND
IN THE MATTER OF THE PROCEEDINGS, FINDINGS AND DECISION MADE ON 05. 12. 2013 IN OBJECTION NO 636 OVER LAND PARCEL NUMBER 6348 SITUATED IN AKAIGA ADJUDICATION SECTION.
BETWEEN
MORRIS KIREMA M'ITURU ….............................................EXPARTE APPLICANT
VERSUS
TIGANIA EAST DISTRICT LAND ADJUDICATION AND
SETTLEMENT OFFICER..............................................................1ST RESPONDENT
ATTORNEY GENERAL ….............................................................2ND RESPONDENT
AND
JAMES M'AMANJA M'RUKUNGA..............................................INTERESTED PARTY
R U L I N G
1. This application is dated 7th July, 2014 and seeks orders:-
a. That this Honourable Court be pleased to certify this application urgent and that the same be heard expeditiously.
b. That this Honourable Court be pleased to strike out this Judicial Review with costs to the Interested Party/applicant.
c. That the stay orders granted by Court on 12 March, 2014 be discharged accordingly.
d. Cost of this case/application be awarded to the Interested Party.
2. It is supported by the affidavit of Leonard Ondari, the Advocate for the Interested Party and has the following grounds:-
a. No Notice of Motion was filed and served within the mandatory 21 days.
b. The leave obtained is thus a non-starter.
c. The conduct of the Exparte application amounts to gross abuse of the Court process.
3. The Supporting Affidavit is dated 7th, July, 2014 and states as follows:-
1. THAT, I am a male adult of sound mind capable of swearing this affidavit.
2. THAT, I have the conduct of this case on behalf of the Interested Party.
3. THAT, immediately the Interested Party was served with the order dated 13th March, 2014, he instructed us to act for him.
4. THAT, on 3rd April, 2014 we filed and served our Notice of appointment.
5. THAT, on 25th June, 2014, I visited the registry to peruse the file herein and was surprised to find that no notice of motion was filed within the statutory period as required by law.
6. THAT, the exparte applicant is therefore taking this Court for a ride or has abused its process.
7. THAT, the order of stay is therefore irregular in absence of the Notice of Motion.
8. THAT, the whole application has therefore no basis its irredeemable as no amount of amendment can save it.
9. THAT, It is only fair that the case be struck out and Orders discharged.
4. When the matter came up for directions, it was clear that that the exparte applicant did not file the apposite notice of Motion within the Stipulated time. In the Circumstances, the application is allowed in terms of prayers (b) (c) and (d).
It is so ordered .
DELIVERED IN OPEN COURT AT MERU THIS 24TH DAY OF MAY, 2016 IN THE PRESENCE OF:-
CC: Lilian /Daniel
Mutuma for the exparte applicant
Ondari for the Interested Party.
P.M.NJOROGE
JUDGE