[2012] KEHC 3094 (KLR)
The court held that Order 53 of the Civil Procedure Rules does not provide for the joinder of parties at the stage of a chamber application for leave to apply for judicial review orders. The correct procedure is for interested parties to seek to be heard or joined after the substantive motion has been filed and is...
Source-derived case information.
- Citation
- [2012] KEHC 3094 (KLR)
- Parties
- Applicant: Republic; Respondent: Chief Magistrate Bungoma; Respondent: Attorney General; Applicant: Patrick Wafula Kaburu; Applicant: Japhether Wamalwakilui; Applicant: Jackson Wetosi; Applicant: Andrew Moita Simiyu; Applicant: Peter Wafula Kituyi; Applicant: Rose Nang’unda; Applicant: William Wafubwakhaemba; Applicant: Solomon Wepukhulu; Applicant: John Wafula Khisa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 104 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Joinder at Leave Stage
- Outcome
- Application for joinder at leave stage declined.
- Judges
- AO Muchelule
- Legal Topics
- Judicial Review, Joinder of Parties, Leave to Apply, Criminal Proceedings, Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chief Magistrate Bungoma
Respondent
Attorney General
Respondent
Patrick Wafula Kaburu
Applicant
Japhether Wamalwakilui
Applicant
Jackson Wetosi
Applicant
Andrew Moita Simiyu
Applicant
Peter Wafula Kituyi
Applicant
Rose Nang’unda
Applicant
William Wafubwakhaemba
Applicant
Solomon Wepukhulu
Applicant
John Wafula Khisa
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Joinder at Leave Stage
Legal Issues
- 1 Whether interested parties can be joined at the stage of a chamber application for leave to apply for judicial review orders.
- 2 Whether Order 53 of the Civil Procedure Rules permits joinder of parties at the leave stage.
Ratio Decidendi
The court held that Order 53 of the Civil Procedure Rules does not provide for the joinder of parties at the stage of a chamber application for leave to apply for judicial review orders. The correct procedure is for interested parties to seek to be heard or joined after the substantive motion has been filed and is set down for hearing. Therefore, the application for joinder at the leave stage was premature and could not be entertained by the court.
Court Disposition
Application for joinder at leave stage declined.
Orders
- The application for joinder at the leave stage is declined.
- Each party will bear his own costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT BUNGOMA
Miscellaneous Application 104 of 2011
IN THE MATTER OF AN APPLICATION TO APPLY FOR LEAVE FOR JUDICAIAL REVIEW ORDERS CERTIORARI BY PATRICK WAFULA KABURU
AND
IN THE MATTER OF CHAPTER FOUR SECTION 22 (1) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF PROCEEDINGS OF THE CHIEF MAGISTRATE’S COURT AT BUNGOMA IN BUNGOMA CM CRIMINAL CASE NO.1664 OF 2010 ON 20/06/2010 AND 20/07/2011 AND ANY ORDERS MADE THERE AFTER
BETWEEN
REPUBLIC........................................................................................................... APPLICANT
~VERSUS~
CHIEF MAGISTRATE BUNGOMA................................................................RESPONDENT
ATTORNEY GENERAL................................................................................RESPONDENT
AND
PATRICK WAFULA KABUR........................................................EXPARTE APPLICANT
AND
JAPHETHER WAMALWAKILUI.............................................1ST INTERESTED PARTY
JACKSON WETOSI.................................................................2ND INTERESTED PARTY
ANDREW MOITA SIMIYU.......................................................3RD INTERESTED PARTY
PETER WAFULA KITUYI.........................................................4TH INTERESTED PARTY
ROSE NANG’UNDA.................................................................5TH INTERESTED PARTY
WILLIAM WAFUBWAKHAEMBA.........................................6TH INTERESTED PARTY
SOLOMON WEPUKHULU......................................................7TH INTERESTED PARTY
JOHN WAFULA KHISA..........................................................8TH INTERESTED PARTY
RULING
There is an application for leave to bring into this court and quash the proceedings in Bungoma Chief Magistrates Criminal Case no.1664 of 2010 (formerly Kimilili SRM Cr. Case no.1139 of 2008). In the proceedings the accused Moses Khaoya Kaburu was convicted on his own plea of guilty and sentenced to four years in jail. The charges in question were burglary and stealing contrary to section 304 (2) and 279 (b) of the Penal Code and the complainant was the ex-parte Applicant herein. The complainant sought to be given back the items that had been stolen from his house. The application was before the court at Kimilili. For some reason, he successfully asked the court at Kimilili to disqualify itself. It referred the matter to the Chief Magistrate’s Court at Bungoma. His complaint is that the court at Bungoma has kept adjourning the application without making a decision on it.
The eight Applicants seek under Order 53 rule 6 of the Civil Procedure Rules to be joined in the chamber application for leave because what was stolen included a bag containing green cards for their parcels of land.
Under rule 6 one can be allowed to appear and oppose the substantive motion after it is filed and has come for hearing. Order 53 does not provide for a party being joined at this stage of the chamber application for leave. The application is therefore premature and is declined. Each party will bear his own costs.
Dated, signed and delivered at Bungoma this 9th day of July 2012.
A.O. MUCHELULE
JUDGE