[2009] KEHC 965 (KLR)
The court held that judicial review applications must be brought in the name of the Republic and not in the name of the ex-parte applicant. This requirement is substantive and not a mere technicality. The omission to bring the application in the name of the Republic, as well as the failure to invoke the relevant...
Source-derived case information.
- Citation
- [2009] KEHC 965 (KLR)
- Parties
- Applicant: Rebecca Kimoi Biwott; Respondent: Land District Tribunal Koibatek; Respondent: The Resident Magistrate’s Court at Eldama Ravine; Interested Party: Josphine Teriki Kiptuigeny
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 7 of 2009
- Procedural Posture
- Judicial Review / Preliminary Objection Ruling
- Outcome
- Application struck out as fatally defective.
- Legal Topics
- Judicial Review Procedure, Naming of Parties, Preliminary Objection, Law Reform Act Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rebecca Kimoi Biwott
Applicant
Land District Tribunal Koibatek
Respondent
The Resident Magistrate’s Court at Eldama Ravine
Respondent
Josphine Teriki Kiptuigeny
Interested Party
Procedural Posture
Judicial Review / Preliminary Objection Ruling
Legal Issues
- 1 Whether failure to bring a judicial review application in the name of the Republic renders the application fatally defective.
- 2 Whether failure to cite Sections 8 and 9 of the Law Reform Act affects the competence of the application.
- 3 Whether facts relied on must be deposed in an affidavit rather than a statement.
Ratio Decidendi
The court held that judicial review applications must be brought in the name of the Republic and not in the name of the ex-parte applicant. This requirement is substantive and not a mere technicality. The omission to bring the application in the name of the Republic, as well as the failure to invoke the relevant provisions of the Law Reform Act, rendered the application fatally defective. The court therefore upheld the preliminary objection and struck out the application with costs to the Interested Party.
Court Disposition
Application struck out as fatally defective.
Orders
- The preliminary objection is upheld.
- The application is struck out with costs to the Interested Party.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
JUDICIAL REVIEW 7 OF 2009
REBECCA KIMOI BIWOTT……………...………………APPLICANT
VERSUS
LAND DISTRICT TRIBUNAL KOIBATEK……….1ST RESPONDENT
THE RESIDENT MAGISTRATE’S COURT
AT ELDAMA RAVINE………………...………....2ND RESPONDENT
AND
JOSPHINE TERIKI KIPTUIGENY……..…...…..INTERESTED PARTY
RULING
This is a Judicial Review application brought under Order 53 Rule 3(1) & (2) of the Civil Procedure Rules. Josphine Teriki Kiptuigeny, the Interested Party has challenged its competence on the grounds that it has not invoked Sections 8and9 of the Law Reform Act and that the substantive application has been brought in the name of Rebecca Kimoi Biwott, the ex-parte applicant instead of that of the Republic.
Raising the preliminary objection on behalf of the Interested Party, Mr. Kirugi argued that the jurisdiction to issue the Judicial Review orders is donated by Sections 8and9 of the Law Reform Act.As the Notice of Motion herein has not cited those sections the same is incompetent. He also contended that instead of deposing the facts relied on in the affidavit in support of the application, the ex-parte applicant has stated them in the accompanying statement. She has also brought the application in her name instead of that of the Republic. He cited several authorities in support of his submissions which I will refer to in a moment. Mr. Ogonda who held brief for the applicant’s counsel did not submit on this preliminary objection as he said his instructions were limited to only applying for adjournment.
Judicial Review orders are issued in the name of the Republic at the instance of the applicant and are directed to the person or persons who are to comply with them. The Republic cannot therefore be the applicant and respondent in the same matter. That is why, after obtaining leave, the substantive applications should be made in the name of the Republic-Farmers Bus Service & Others Vs The Transport Licensing Appeals Tribunal, [1959] EA 779. Failure to bring such an application in the name of the Republic is not a mere error of form but goes to the substance of the matter-Ndete Vs Chairman Land Disputes Tribunal, [2002] KLR 392.
This application having been brought in the name of the applicant is therefore fatally defective. In the circumstances, I uphold this preliminary objection and strike it out with costs to the Interested Party.
DATED and delivered this 13th day of October, 2009.
D.K. MARAGA
JUDGE.