[2020] KEHC 6057 (KLR)
The court found that the substantive Motion was filed well outside the 21-day period granted for its filing, and there was no order on record extending the time for filing. Compliance with court-ordered timelines is mandatory in judicial review proceedings. Since the applicants did not seek or obtain an extension of...
Source-derived case information.
- Citation
- [2020] KEHC 6057 (KLR)
- Parties
- Applicant: Republic; Respondent: Clerk of the County Assembly of Kakamega; Respondent: County Government of Kakamega; Applicant: Robert Lutatwa Lubwa & 40 Others
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 45 of 2019
- Procedural Posture
- Judicial Review Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; substantive Motion struck out as a nullity; costs to respondents
- Judges
- DN Musyoka
- Legal Topics
- Judicial Review Timelines, Extension of Time, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Clerk of the County Assembly of Kakamega
Respondent
County Government of Kakamega
Respondent
Robert Lutatwa Lubwa & 40 Others
Applicant
Procedural Posture
Judicial Review Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the substantive Motion was filed within the time allowed by the court order.
- 2 Whether the court had extended time for filing the substantive Motion beyond the 21 days granted.
- 3 Whether the Motion filed outside the prescribed period without extension is a nullity.
Ratio Decidendi
The court found that the substantive Motion was filed well outside the 21-day period granted for its filing, and there was no order on record extending the time for filing. Compliance with court-ordered timelines is mandatory in judicial review proceedings. Since the applicants did not seek or obtain an extension of time, the Motion was not properly before the court. The preliminary objection was therefore upheld, and the Motion was struck out as a nullity. The respondents were awarded costs.
Court Disposition
preliminary objection upheld; substantive Motion struck out as a nullity; costs to respondents
Orders
- The preliminary objection dated 25th November 2019 is upheld.
- The Motion dated 12th June 2019 is struck out as a nullity.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
JUDICIAL REVIEW APPLICATION NO. 45 OF 2019
REPUBLIC................................................................................................................APPLICANT
VERSUS
CLERK OF THE COUNTY ASSEMBLY OF KAKAMEGA…..............1ST RESPONDENT
COUNTY GOVERNMENT OF KAKAMEGA........................................2ND RESPONDENT
EX PARTE:ROBERT LUTATWA LUBWA & 40 OTHERS
RULING
1. These proceedings commenced on 9th April 2019, when the exparte applicants lodged a chamber summons, dated 5th April 2019, seeking leave to apply for orders of prohibition and mandamus.
2. The chamber summons, dated 5th April 2019, was placed before me on 24th April 2019, under a certificate of urgency, dated 5th April 2019. I granted leave to the exparte applicants to apply for the orders of prohibition and mandamus, and directed that the substantive Motion be filed within 21 days, in keeping with order 53 Rule 3(1) of the Civil Procedure Rules.
3. The substantive Motion, dated 12th June 2019, was lodged at the registry on 9th August 2019. That would mean that it was filed way outside the 21 days that I had granted on 24th April 2019. 21 calendar days from 24th April 2019 expired on 15th May 2019. When the 21 days are reckoned excluding weekends and public holidays, the expiry date was 27th May 2019. In short, the Motion should have been filed within the course of the month of May 2019.
4. I have closely and scrupulously perused through the record before me, and I have not come across any order by this court extending time for filing the Motion beyond the 21 days allowed by the court on 24th April 2019. The Motion was filed outside the period allowed in the court order, and was filed without an order having been made to have the period extended.
5. I, therefore, find merit in the preliminary objection dated, 25th November 2019. The preliminary objection is upheld. The Motion dated 12th June 2019 is not properly before me. It is a nullity. It is hereby struck out. The respondents shall have the costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 30TH DAY OF APRIL, 2020
W. MUSYOKA
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic, and in light of the directions issued by His Lordship, the Chief Justice, on 15th March 2020, this ruling/judgment has been delivered to the parties online withtheir consent. They have waived compliance with Order 21 rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159 (2) (d) of theConstitution which requires the court to eschew technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 18 of the Civil Procedure Act, Cap 21, Laws ofKenya, which impose on this court the duty to use, inter alia, suitable technology to enhance the overriding objective, which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
W. MUSYOKA
JUDGE