[2011] KEHC 2036 (KLR)
The court found that the applicant failed to comply with the mandatory procedural requirements under Order 53 rule 1(2) of the Civil Procedure Rules by not filing a statement of facts or a verifying affidavit, and by failing to annex the order sought to be quashed. These omissions are fatal to the application,...
Source-derived case information.
- Citation
- [2011] KEHC 2036 (KLR)
- Parties
- Applicant: Paul Njagi Kapingazi; Respondent: Attorney General; Respondent: District Land Tribunal; Respondent: John Nthiga Zakaria
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 72 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review
- Outcome
- application struck out as incompetent with costs
- Legal Topics
- Judicial Review, Certiorari, Prohibition, Leave to Apply, Procedural Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Njagi Kapingazi
Applicant
Attorney General
Respondent
District Land Tribunal
Respondent
John Nthiga Zakaria
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review
Legal Issues
- 1 Whether the application for leave to apply for judicial review complied with mandatory procedural requirements under Order 53 rule 1(2) of the Civil Procedure Rules.
- 2 Whether failure to file a statement of facts and verifying affidavit renders the application incompetent.
- 3 Whether the absence of the order sought to be quashed is fatal to the application.
Ratio Decidendi
The court found that the applicant failed to comply with the mandatory procedural requirements under Order 53 rule 1(2) of the Civil Procedure Rules by not filing a statement of facts or a verifying affidavit, and by failing to annex the order sought to be quashed. These omissions are fatal to the application, rendering it incompetent. The court therefore struck out the application with costs.
Court Disposition
application struck out as incompetent with costs
Orders
- The application is struck out with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISC. APPLICATION NO. 72 0F 2011
IN THE MATTER OF: THE LAW REFORM ACT, CHAPTER 26 OF
THE LAWS OF KENYA
IN THE MATTER OF: DISTRICT LAND DISPUTE TRIBUNAL
IN THE MATTER OF: RES JUDICATA
IN THE MATTER OF: AN APPLICATION BY APPLICANT PAUL NJAGI KAPINGANZI FOR LEAVE TOAPPLY FOR CERTIORARI ANDPROHIBITION
PAUL NJAGI KAPINGAZI ………………………………APPLICANT
VERSUS
ATTORNEY GENERAL………...........................…………1ST REPONDENT
DISTRIST LAND TRIBUNAL …..........……………….. 2ND RESPONDENT
JOHN NTHIGA ZAKARIA ……….........………………. 3RD RESPONDENT
R U L I N G
This is a chamber application by the ex-parte Applicant who seeks leave to bring Judicial Review Proceedings in nature of Certiorari and Prohibition. He seeks that the leave granted do operate as stay of execution of the order of the Land Disputes Tribunal dated 23rd June 2011. It is not indicated which Land Disputes Tribunal made the order that is sought to be quashed. The 2nd Respondent is only described as “District Land Dispute Tribunal.”
Secondly, under Order 53 rule 1(2) of the Civil Procedure Rules it is mandatory that an application for leave be accompanied by a statement setting out the name and description of the Applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. No statement of facts or verifying affidavit was filed to support this application. Only a “supporting affidavit” was filed.
Thirdly, the order sought to be quashed was not annexed. Consequently, the application is incompetent and is struck out with costs.
DATED, SIGNED AND DLEIVERED AT EMBU THIS 28TH DAY OF JULY 2011
A.O. MUCHELULE
JUDGE