[2020] KEHC 4488 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. 72 OF 2020

BETWEEN

REPUBLIC..............................................................................................APPLICANT

VERSUS

THE ATTORNEY GENERAL....................................................1ST RESPONDENT

ENERGY AND PETROLEUM

REGULATORY AUTHORITY.........................2ND RESPONDENT/APPLICANT

EXPARTE:

HON. JUDE NJOMO AND

ANTHONY KURIA

(Suing as Officials of

KENAPEDE ASSOCIATION)

RULING

The Application

1. This Court on 9th June 2020 directed the Respondent to file and serve their responses and submissions on the ex parte Applicant’s Notice of Motion dated 15th May 2020 within fourteen (14) days of service. Subsequent to the said directions, the advocates on record for the 2nd Respondent filed an application by way of a Notice of Motion dated 11th June 2020, which is the subject of this ruling. The 2nd Respondent is seeking orders that the its application be heard before the ex parte Applicants’ substantive Notice of Motion dated 15th May, 2020, and that the 2nd Respondent’s Notice of Preliminary Objection dated 8th June, 2020 be heard first and before the ex parte Applicants’ Substantive Notice of Motion dated 15th May, 2020.

2. The Notice of Motion is supported by an affidavit sworn on 11th June 2020 by Grishon Ngángá Thuo, the 2nd Respondent’s advocate. The 2nd Respondent annexed copies of the following Documents which it states it sent to the Court on 8th June 2020 for e-filing:-

a) Notice of Appointment of Advocates dated 8th June, 2020

b) Notice of Preliminary Objection dated 8th June, 2020

c) List & Bundle of Authorities dated 8th June, 2020

d) Letter dated 8th June, 2020 seeking directions from the Court on extension of time within which to file a response to the Substantive Notice of Motion dated 15th May, 2020 and that the 2nd Respondent’s Notice of Preliminary Objection dated 8th June, 2020 be heard first as it had potential to dispose of the entire proceedings.

3. However, that due to what appears to be logistical or technological challenges on the part of the Court, the 2nd Respondent’s Notice of Appointment was placed before the Judge but the Preliminary Objection and the Letter Requesting Directions were not. As a result, that . Consequently, that in its directions on 9th June, 2020 the Court observed that the 2nd Respondent had not filed any response to the Substantive Notice of Motion and proceeded to give directions on the said Application without considering the 2nd Respondent’s Preliminary Objection dated 8th June, 2020. Further, that the Court directed that the matter be mentioned on 21st July, 2020 for purposes of reserving Judgment date in respect of the substantive Notice of Motion dated 15th May, 2020.

4. The 2nd Respondent is therefore apprehensive that the Court will proceed to reserve a Judgment date without hearing its Preliminary Objection on jurisdiction, which has the potential to dispose of the entire proceedings, and would violate the 2nd Respondent’s right to a fair hearing under Article 50 of the Constitution of Kenya, 2020.

The Determination

5. I have considered the 2nd Respondent’s application, and note that it is evident from the record that the directions given by this Court on 9th June 2020, were made without the knowledge and awareness of the 2nd Respondent’s Notice of Preliminary Objection dated 8th June 2020. As this new evidence has now come to light, there is justifiable ground to review and vary the said directions pursuant to the provisions of section 80 and Order 45 Rule 1 of the Civil Procedure Rules.

6. Section 80 of the Civil Procedure Act provides as follows:

“Any person who considers himself aggrieved—

(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is allowed by this Act,

may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

7. Order 45 Rule 1 of the Civil Procedure Rules elaborates on the grounds on which a judgment or decree can be reviewed or set aside as follows:

“ (1) Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is hereby allowed,

and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

8. In the premises, the directions given by this Court on 9th June 2020 are hereby reviewed and varied to the extent of the following orders:

I. The 2nd Respondent’s Notice of Preliminary Objection dated 8th June 2020 shall be heard first, before the ex parte Applicant’s Notice of Motion dated 15th May 2020.

II. The 2nd Respondent shall file and serve theex parte Applicants with its submissions on the Notice of Preliminary Objection dated 8th June 2020, together with a copy of this ruling and a mention notice within fourteen (14) days of today’s date.

III. The ex parte Applicants are granted leave to file and serve their reply submissions on the said Notice of Preliminary Objection within fourteen (14) days of service of the 2nd Respondent’s submissions.

IV. This matter shall be mentioned on 21st July 2020 to reserve a ruling date on the Notice of Preliminary Objection dated 8th June 2020.

V.In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear theNotice of Preliminary Objection dated 8th June 2020on the basis of the electronic copies of the pleadings and written submissions filed by the parties.

VI.The parties shall file their pleadings, applications and written submissions electronically and avail electronic copies inword format, by sending them to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comwith copies to asunachristine51@gmail.com.

VII.The electronic copies of pleadings and documents sent by the parties shall be clearly and correctly titled to indicate the J.R Case Number, the description of the Party sending it (that is whether the Ex Parte Applicant, Respondent or Interested Party), and the nature of the pleading or document.

VIII.The service of pleadings and documents directed by the Court shall be by way of personal service andelectronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comwith copies to asunachristine51@gmail.com.

IX.The parties shall also be required to send to the Deputy Registrar of the Judicial Review Division their respective affidavits of service evidencing personal service, by way of electronic mail tojudicialreview48@gmail.comwith copies to asunachristine51@gmail.com.

X.The Deputy Registrar ofthe Judicial Review Division shall send a copy of this ruling to the ex parte Applicants and Respondents by electronic mail by close of business on Friday, 19th June 2020.

XI.The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for mention on 21st July 2020 and bring it to the attention of a Judge in the Division on that date for reservation of a ruling date.

XII.Parties shall be at liberty to apply.

9. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JUNE 2020

P. NYAMWEYA

JUDGE