[2011] KEHC 373 (KLR)
The court found that the applicant, Mary Wairimu Gikunju, failed to disclose that she had previously been granted leave to file a similar judicial review application, which she later withdrew. This omission constituted material non-disclosure. The court held that such non-disclosure is a serious breach of the duty...
Source-derived case information.
- Citation
- [2011] KEHC 373 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman, Kieni East Land Disputes Tribunal; Respondent: Chief Magistrate, Nyeri; Interested Party: Peter King’ai Wang’ombe; Applicant: Mary Wairimu Gikunju
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 19 of 2010
- Procedural Posture
- Judicial Review / Ruling on Preliminary Objection and Motion
- Outcome
- motion struck out for material non-disclosure and abuse of process
- Judges
- JK Sergon
- Legal Topics
- Judicial Review Procedure, Material Non Disclosure, Abuse of Process, Land Disputes Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman, Kieni East Land Disputes Tribunal
Respondent
Chief Magistrate, Nyeri
Respondent
Peter King’ai Wang’ombe
Interested Party
Mary Wairimu Gikunju
Applicant
Procedural Posture
Judicial Review / Ruling on Preliminary Objection and Motion
Legal Issues
- 1 Whether the applicant was guilty of material non-disclosure in seeking judicial review orders.
- 2 Whether the applicant abused the process of court by failing to disclose previous proceedings and withdrawal.
- 3 Whether the motion for certiorari and prohibition should be struck out for non-disclosure.
Ratio Decidendi
The court found that the applicant, Mary Wairimu Gikunju, failed to disclose that she had previously been granted leave to file a similar judicial review application, which she later withdrew. This omission constituted material non-disclosure. The court held that such non-disclosure is a serious breach of the duty owed to the court in judicial review proceedings, as it undermines the integrity of the process and may mislead the court. The court further determined that the applicant's conduct amounted to an abuse of the court process, as she sought to initiate fresh proceedings without informing the court of the prior application and its withdrawal. Consequently, the court agreed with the...
Court Disposition
motion struck out for material non-disclosure and abuse of process
Orders
- The motion dated 22nd February 2010 is struck out.
- Costs awarded to the interested party.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
JUDICIAL REVIEW NO. 19 OF 2010
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW FOR
AND
IN THE MATTER OF KIENI LAND DISPUTES TRIBUNAL CLAIM NO. K/E/LDT/01/09
BETWEEN
IN THE MATTER OF SECTION 8 & 9 LAW REFORM ACT
REPUBLIC..................................................................................................................................APPLICANT
VERSUS
CHAIRMAN, KIENI EAST LAND DISPUTES TRIBUNAL..........................................1STRESPONDENT
CHIEF MAGISTRATE, NYERI.......................................................................................2ND RESPONDENT
AND
PETER KING’AI WANG’OMBE.................................................................................INTERESTED PARTY
MARY WAIRIMU GIKUNJU...................................................................................EXPARTE APPLICANT
RULING
In the Motion dated 22nd February 2010, Mary Wairimu Gikunju, theexparte Applicant herein, sought for the following orders:
1. That the order of certiorari do issue removing into this Honourable court for purposes of being quashed the award of Kieni East Land disputes Tribunal in claim No. K/E/LDT/01/09 dated 27. 8.2009.
2. That an order of prohibition do issue against the Chief Magistrate, Nyeri from adopting the award No. K/E/LDT/01/09 dated 27. 8.2009 from Kieni East Land Disputes Tribunal as judgment of the court.
3. That costs of this application be provided for.
The Motion is accompanied by a statement of fact and is verified by the Applicant’s affidavit. Peter King’ai Wang’ombe, the Interest Party herein, filed a replying affidavit to oppose the Motion. Miss Munyi, learned Provincial Litigation Counsel, filed a notice of preliminary objection on behalf of the Respondents to resist the Motion.
The Interested Party raised an interesting preliminary point which I feel the same merits consideration. It is his submission that the Applicant herein is guilty f material non-disclosure hence his motion should not be entertained by this court. It is pointed out that on 30th September 2009, the applicant was given leave of 21 days to take out judicial review proceedings in the nature of certiorari and prohibition vide Nyeri H.C.Misc. Appl. No. 38 of 2009. On 16th October 2009, the Applicant duly filed the Motion but on 29th January 2010, the Applicant withdrew the entire Motion. It is clear from the record that the Exparte Applicant proceeded to apply for a fresh leave to take out similar proceedings vide Nyeri H.C. Misc. Application 19 of 2010. He was again given 21 days’ leave on 3rd February 2010. I have perused at theexparte Chamber Summons for leave dated 3rd February 2010 plus the supporting affidavit. It is clear from the aforesaid documents that the Exparte Applicant did not disclose the fact that he had previously been granted leave. He did not even disclose the fact that he had withdrawn the entire Motion. I am convinced that the Applicant is guilty of material non-disclosure. The applicant therefore abused the process of Court. With respect, I agree with the interested party. The applicant must pay a price for abusing the process of this court. His Motion dated 22nd February 2010 is ordered struck out with costs to the Interested Party.
Dated and delivered at Nyeri this 29th day of July 2011.
J. K. SERGON
JUDGE