[1994] KEHC 111 (KLR)
The court found that the preliminary objection raised by the respondent, based on the alleged failure to issue notice and obtain leave before filing the judicial review application, was without merit. The court noted that the original court file was lost, making the respondent's arguments speculative. Furthermore,...
Source-derived case information.
- Citation
- [1994] KEHC 111 (KLR)
- Parties
- Applicant: Municipal Council of Mombasa; Respondent: Alibhai Kanji & Others
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 67 of 1992
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection in Judicial Review Application
- Outcome
- Preliminary objection dismissed; costs awarded to applicant.
- Legal Topics
- Judicial Review, Service of Process, Certiorari, Mandamus, Natural Justice
- 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
Municipal Council of Mombasa
Applicant
Alibhai Kanji & Others
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection in Judicial Review Application
Legal Issues
- 1 Whether the service of summons in the original suit was effected in accordance with the prescribed rules.
- 2 Whether lack of proper service renders subsequent proceedings and orders a nullity.
- 3 Whether the preliminary objection regarding lack of notice and leave is sustainable under the applicable rules.
Ratio Decidendi
The court found that the preliminary objection raised by the respondent, based on the alleged failure to issue notice and obtain leave before filing the judicial review application, was without merit. The court noted that the original court file was lost, making the respondent's arguments speculative. Furthermore, the court was satisfied that leave had been shown to have been granted, and even if it had not, the application raised fundamental issues that warranted determination on their merits. The court emphasized that the remedy of certiorari is discretionary and is intended to prevent abuse of power and ensure legality in judicial proceedings. Where there is evidence of defective or...
Court Disposition
Preliminary objection dismissed; costs awarded to applicant.
Orders
- The preliminary objection is disallowed.
- Costs of the objection are awarded to the applicant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
MISCELLANEOUS CIVIL APPLICATION 67 OF 1992
MUNICIPAL COUNCIL OF MOMBASA…………………………………………..APPLICANT
VERSUS
ALIBHAI KANJI & OTHERS……………………………………………...…….RESPONDENT
EX - PARTE LADHA
RULING
There is here an application for judicial review seeking orders of certiorariand mandamusunder order LIII of the Civil Procedure Rules.
Basically, it is alleged that the property No 302 section V/MN registered in the name of one Alibhai Kanji should not have been sold by an auctioneer who purported to execute a decree issued Magistrate’s Court because the purported service of the summons to enter appearance in the case had not been effected in the manner prescribed by the Rules, and the decree therefore void. It is pertinent to recall that the suit had been filed by the Municipal Council of Mombasa to recover the outstanding arrears of rates in respect of the same plot.
The applicants are the sons of the late Alibhai Kanji. In paragraph 8(i) of their statement they averred as follows:
“That the summons was served allegedly on the late Alibhai Kanji who died on the 2nd of March 1994 at his residence on the 16th of August 1991 when he purportedly refused to sign for the service of the summons.”
In some ways the issues raised by this application are similar to the High Court Misc Civil Case No 69 of 1990 where it was held that where it is proved that there was a defective or no service of the process but which followed by an “unseemly hurried court proceedings and orders”, the High Court would invoke its jurisdiction of the judicial review and make orders of certiorari, mandamusor prohibition in favour of the aggrieved party. But one has to hasten to say here that the Court’s duty on such an application as the instant one will only confine itself to the question of legality ie whether the inferior court or tribunal committed an error of law or committed a breach of natural justice or reached a decision which no reasonable tribunal could have reached.
It must always be remembered that the remedy of certiorariis discretionary; and is available to the High Court for the purpose of ensuring that the lower court do not abuse or exceed their powers and thereby make irregular and oppressive orders.
It is obvious that if there was no requisite service of summons but instead a deliberately false return by process server, the subsequent proceedings which presupposed that there was proper service must have been a nullity: the orders which resulted from such proceedings would be indefensible and have to be quashed. Mr Gikandi has raised a preliminary point whose thrust is that the applicant did not issue notice nor did he obtain the leave of court both of which are mandatory requirements under the Rules before the Rules in LN 164 of 1992 purportedly abolished them.
It is common ground that the original court file and record are irretrievably lost and thus, Mr Gikandi’s arguments seeking to discredit the applicant’s advocates can only be of a conjectural nature. But in reply Mr Gautama contended that there was no basis for the submission made by Mr Gikandi. It is true that Mr Gikandi did not point out the basis for his submission. I have even been shown a copy of the order for leave. On what basis then can the preliminary objection be upheld? Recently my attention was drawn to the case of Kenneth Stanley Njindo Matiba v Attorney GeneralHCCC Application No 790 of 1993 in which a bench of three judges refused to strike out an application for certiorarifor want of notice and/or leave. They concluded that if leave had been sought it would almost invariably have been granted. Likewise, I hold that if the requisite leave had, by some inadvertence, not been sought, then I should give it.
For reasons which I have adverted to it is clear that the application itself relates to fundamental issues which must be determined on merits.
I disallow the objection. I view it as of a time wasting tactic. I give costs to the applicant.
Dated and Delivered at Mombasa this 23rd day of June 1994.
I.C.C.WAMBILYANGAH
JUDGE