[2014] KEHC 3781 (KLR)
The court found the application incompetent on three grounds: (1) it was defective in form as the applicant was not properly described and the Republic was not strictly named as the applicant, contrary to established legal requirements; (2) the application was filed more than two years after leave was purportedly...
Source-derived case information.
- Citation
- [2014] KEHC 3781 (KLR)
- Parties
- Applicant: Tom Sava Inyimiri; Respondent: The Senior Resident Magistrate’s Court Hamisi; Interested Party: Mark Imbayi Sava
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application 59 of 2011
- Procedural Posture
- Judicial Review Application / Ruling on Notice of Motion
- Outcome
- application struck out with costs to the interested party
- Judges
- GMA Dulu
- Legal Topics
- Judicial Review Procedure, Leave to Apply, Timeliness of Application, Criminal Appeals, Revisionary Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Sava Inyimiri
Applicant
The Senior Resident Magistrate’s Court Hamisi
Respondent
Mark Imbayi Sava
Interested Party
Procedural Posture
Judicial Review Application / Ruling on Notice of Motion
Legal Issues
- 1 Whether the application for judicial review was properly before the court in terms of form and procedure.
- 2 Whether the application was filed within the statutory time limits after leave was granted.
- 3 Whether judicial review is the appropriate remedy to challenge decisions of a criminal court.
Ratio Decidendi
The court found the application incompetent on three grounds: (1) it was defective in form as the applicant was not properly described and the Republic was not strictly named as the applicant, contrary to established legal requirements; (2) the application was filed more than two years after leave was purportedly granted, far outside the mandatory 21-day period stipulated by Order 53 rule 3(1) of the Civil Procedure Rules; and (3) judicial review is not the appropriate mechanism to challenge decisions of a criminal court, as such decisions should be addressed through statutory appeal or revision procedures under the Criminal Procedure Code. The cumulative effect of these defects rendered...
Court Disposition
application struck out with costs to the interested party
Orders
- The application is struck out as incompetent.
- Costs awarded to the interested party.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
JUDICIAL REVIEW APPLICATION NO. 59 OF 2011
IN THE MATTER OF AN APPLICATION BY TOM SAVA INYIMIRI FOR AN ORDER OF CERTIORARI AND PROHIBITION AND OR JUDICIAL REVIEW.
AND
IN THE MATTER OF THE ORDERS AND OR PROCEEDINGS VIDE HAMISI SENIOR RESIDENT MAGISTRATE’S CRIMINAL CASE NO. 461 OF 2010, 265 OF 2011 AND 582 OF 2011
BETWEEN
REPUBLIC THROUGH
TOM SAVA INYIMIRI …………………………………… APPLICANT
VERSUS
THE SENIOR RESIDENT MAGISTRATE’S
COURT HAMISI ………………………………………. RESPONDENT
AND
MARK IMBAYI SAVA ………………………. INTERESTED PARTY
R U L I N G
This is a Notice of Motion dated 8/12/11 filed by Tom Sava Inyimiri. The Senior Resident Magistrate Hamisi is named as the respondent while Mark Imbayi Sava is named as the Interested Party.
The application was filed by M/S Elung'ata & Company advocates on behalf of the applicant. The prayers are as follows -
That the applicant Tom Sava Inyimiri be granted an order of certiorari and prohibition to issue and remove into this court and quash forthwith the decision of the Hamisi Senior Resident Magistrate's Criminal Case No. 461 of 2010, 265/11 and 582/11 and all consequential orders thereto in respect of Land Parcel No. LR. S/Tiriki/Senende/3.
That the interested parties herein be condemned to pay costs of this application.
It is not clear from the documents filed and the record whether leave to file Judicial Review proceedings was granted by the court. I note however, that an application by way of Notice of Motion dated 17th March, 2010 was filed together with an affidavit sworn by Joseph Ajevi and a Statement giving the facts, reliefs sought and the grounds for the reliefs. That application does not ask for leave to file Judicial Review proceedings. Though I see a document purportedly signed by the Deputy Registrar on 18th November, 2009 purporting to be leave, that leave was granted on 12/11/2009. The leave granted was for filing the substantive application within 21 days. In short, the documents are confusing.
Having considered the Notice of Motion herein, I am of the view that it will fail for the following reasons. Firstly, the application is defective in form. The applicant is not described as the ex-parte applicant but as the applicant. Though the Republic is mentioned, the rules require that the Republic be strictly be named as the applicant - see Farmers Bus Service –vs- The Transport Licensing Appeals Tribunal [1959] EA 779. The application is therefore defective on that account.
Secondly, even assuming that leave was indeed granted on 12/11/2009, the application should have been filed by early December, 2009 within 21 days. This application was however filed on 8/12/2011 which was more than 2 years after the leave was granted, in contravention of the mandatory provisions of Order 53 rule 3 (1), which states –
“3 (1) When leave has been granted to apply for an Order of Mandamus Prohibition or Certiorari, the application shall be made within twenty one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.”
The third reason why this application will fail is that it seeks to reverse decisions of a criminal court through Judicial Review proceedings. In my view, that cannot be the purpose of Order 53 of the Civil Procedure Rules. There are adequate avenues for reviewing of decisions made in criminal cases by the lower courts under the Criminal Procedure Code (Cap. 75). These avenues include appeals and the revision powers of the High Court granted under Section 362of the Criminal Procedure Code (Cap. 75).
In bringing these judicial review proceedings, the applicant was misadvised. The Judicial Review court is the wrong forum to correct or reverse decisions made in criminal matters. On that account also the application will fail.
Consequently, this application is incompetent. I strike it out with costs to the interested party.
Dated and delivered at Kakamega this 22nd day of May 2014
George Dulu
JUDGE