[2017] KEHC 2760 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 284 OF 2016

IN THE MATTER OF AN APPLICATION BY PARESH KAMLAKAH NAIK AND NASSIM MOHAMEDALI JAMAL FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION.

AND

IN THE MATTER OF ARTICLE 15(1) OF THE CONSTITUTION OF KENYA AND SECTION 11 OF THE KENYA CITIZENSHIP AND IMMIGRATION ACT 2011 AS READ WITH ARTICLE 47

AND

IN THE MATTER OF ARTICLES 35(1) AND (2) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF DECISION BY THE DIRECTOR OF IMMIGRATION SERVICE COMMUNICATED BY A LETTER DATED 21ST APRIL 2016

AND

IN THE MATTER OF DECISION BY THE DIRECTOR OF IMMIGRATION SERVICE COMMUNICATED BY A LETTER DATED 10TH MAY 2016

AND

IN THE MATTER OF BREACHES OF THE RULES OF NATURAL JUSTICE.

BETWEEN

PARESH KAMLAKAR NAIK………...............................……….1ST APPLICANT

NASSIM MOHAMEDALI JAMAL…......................................….2ND APPLICANT

VERSUS

THE CABINET SECRETARY MINISTRY INTERIOR AND CO-ORDINATION OF

NATIONAL GOVERNMENT.....................................................1ST RESPONDENT

THE DIRECTOR OF IMMIGRATION SERVICES...................2ND RESPONDENT

THE HONOURABLE ATTORNEY GENERAL........................3RD RESPONDENT

JUDGMENT

1. On 29th June 2016, Honourable Odunga J granted to the exparte applicants Paresh Kamlakar Naik and Nassim Mohammedali Jamal leave to institute Judicial Review proceedings challenging the respondent’s decisions of 21st April 2016 and 10th May 2016.

2. Vide the notice of motion dated 11th July 2016 and filed in court on 12th July 2016, the exparte applicants sought for three orders of mandamus, four orders of certiorari and one prayer for prohibition against the respondents as contained in the notice of motion. They also sought for costs of the application.

3. Before delving into what the exparte applicant’s case is all about and what the respondent’s contentions are, I note that albeit the exparte applicant was on 29th June 2016 granted leave to file the substantive notice of motion within 14 days of the order of leave, and despite the fact that the motion was “filed” on 12th July 2016 which was within 14 days of the order for leave, no court filing fees or evidence of payment of court filing fees of kshs 48,470 as assessed was ever paid into court or exhibited.

4. The court record shows that on 12th July 2016 the notice of motion was received in the Judicial Review Division Sub registry of the High Court, Nairobi. However, the receipt for payment accompanying the notice of motion is that of 29th June 2016 for shs 2745 being No. 7604355 and no other.

5. The latter receipt from the court records, is for the filing of the chamber summons dated 28th June 2016 and filed on 29th June 2016 as assessed then.

6. Regrettably, the court filing fees receipt that is accompanying the chamber summons is the one dated 30th June 2016 for kshs 295/- which is No. 7604276.

7. In other words, there was shifting of court fees receipts but no receipt is available for the filing of the substantive Notice of Motion and despite all the time taken preparing for the hearing, hearing and perusing all the documents in this file, the court finds that infact, the substantive notice of motion was “ not filed” as directed by Honourable Odunga J on 29th June 2016.

8. I say “not filed” because of pleadings or documents in court is evidenced not only by the ‘received’ date stamp but by the payment of court fees which is required by law and unless a party applies for exemption as paupers and or are exempted from payment of court fees like in the case of Government Ministries and County Governments , failure to pay court filing fees renders the pleadings or documents requiring payment before filing incompetent and amenable for striking out.

9. In this case, I have not seen any order exempting the exparte applicants from paying court filing fees of shs 48,470 as assessed, for the filing of the substantive notice of motion.

10. The exparte applicants cannot hide under the principle espoused in Article159 of the Constitution that justice shall be administered without undue regard to procedural technicalities. Failure to pay court filing fees is not a procedural technicality as it goes to the substance of the main pleading which cannot be deemed to be filed without court filing fees being paid and an acknowledgment receipt issued to that effect unless exempted by law or by the court on application.

11. In addition, Article 48 of the Constitution on access to justice is clear that the state shall ensure access to justice for all persons and, if any fees is required, it shall be reasonable and shall not impede access to justice.

12. In this case, the exparte applicants have not explained why they did not pay court filing fees as required by law. In addition, they have not claimed that the required court filing fees is unreasonable or not due. They neither sought for exemptions from paying the required court fees nor claimed that no court fees was required for the filing of the substantive notice of motion.

13. I hold the view that a party cannot unilaterally choose to deny the government and therefore the people of Kenya who deserve government services, revenue.

14. It was upon the exparte applicant to pay court filing fees on the lodgment of the substantive notice of motion or at a later stage, which would have cured the default.

15. The issue here is that court fees was never paid for the filing of the substantive notice of motion, not that it was paid late or that what was paid was insufficient.

16. This court is alive to the provisions of Section 96 of the Civil Procedure Act which stipulates that:

“ where the whole or any part of any fees prescribed for any document by the law for the time in force relating to court fees has not been paid, the court may in its discretion, at any stage, allow the person by whom such fees is payable to pay the whole or part, as the case may be, of the fees and upon such payment the document in respect of which such fees is payable shall have the same force and effect as if such fee had been paid in the first instance.”

17. In the instant case, considering that the filed documents had an assessed court fees but the receipt accompanying it has a figure of court fees for a different document already filed is clear indication that the applicant’s counsel filing the document knew or ought to have know that the required court fees was not paid.

18. The section 96 of the Civil Procedure Act reproduced above is couched in discretionary terms and the court, before exercising its discretion in favour of a party must do so on some defined principles. In this case there is no indication of inadvertence and neither did the applicants bother to ensure that before proceeding with the hearing of the Notice of motion, they had settled the issue of court filing fees. In my view, they must have assumed that the court would not counter check to establish whether or not court filing fees was paid for the notice of motion.

19. Accordingly, I do not find any ground upon which I can exercise my discretion under Section 96 of the Civil Procedure Act to order for payment of court fees which was not paid in the first instance and there being no request for late payment.

20 I find that there was a deliberate move by the applicants and or their advocates in collusion with the court registry staff not to pay the requisite court fees for filing of the substantive notice of motion.

21. This court cannot be complicit in such misdeeds. In the premises , I have no option but to declare the notice of motion dated 11th July 2016 and filed in court on 12th July 2016 incompetently filed. I proceed and strike it out.

22. Each party to bear their own costs if the incompetent notice of motion as struck out.

Dated, signed and delivered in open court at Nairobi this 18th day of September, 2017.

R.E. ABURILI

JUDGE