[2024] KEELRC 15 (KLR)
The court found the motion incompetent because the ex-parte applicant failed to attach the affidavits and statutory statement filed at the leave stage, instead filing new ones without leave of court. Additionally, the applicant did not provide a Certificate of Costs or a Certificate of Order against the County...
Source-derived case information.
- Citation
- [2024] KEELRC 15 (KLR)
- Parties
- Applicant: Republic; Respondent: County Government of Kisumu; Respondent: County Secretary, County Government of Kisumu; Respondent: CFO Finance, County Government of Kisumu; Respondent: CEC Finance & Economic Planning, County Government of Kisumu; Applicant: Humphrey Okuku Nakitari
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application E040 of 2023
- Procedural Posture
- Judicial Review Application / Judgment
- Outcome
- motion struck out as incompetent
- Judges
- S Radido
- Legal Topics
- Judicial Review, Mandamus Orders, Enforcement of Court Orders, Government Proceedings, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
County Government of Kisumu
Respondent
County Secretary, County Government of Kisumu
Respondent
CFO Finance, County Government of Kisumu
Respondent
CEC Finance & Economic Planning, County Government of Kisumu
Respondent
Humphrey Okuku Nakitari
Applicant
Procedural Posture
Judicial Review Application / Judgment
Legal Issues
- 1 Whether the ex-parte applicant complied with the procedural requirements for judicial review applications.
- 2 Whether the motion was competent in the absence of required affidavits and statutory statements.
- 3 Whether the absence of a Certificate of Costs and Certificate of Order against the County Government rendered the application incompetent.
Ratio Decidendi
The court found the motion incompetent because the ex-parte applicant failed to attach the affidavits and statutory statement filed at the leave stage, instead filing new ones without leave of court. Additionally, the applicant did not provide a Certificate of Costs or a Certificate of Order against the County Government, both of which are mandatory for enforcement proceedings against government entities. The absence of these procedural requirements rendered the application fatally defective, leading the court to strike out the motion.
Court Disposition
motion struck out as incompetent
Orders
- The motion dated 16 October 2023 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
37 paragraphs
Republic v County Government of Kisumu & 3 others; Nakitari (Exparte Applicant) (Judicial Review Application E040 of 2023) [2024] KEELRC 15 (KLR) (24 January 2024) (Judgment)
Neutral citation: [2024] KEELRC 15 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Judicial Review Application E040 of 2023
S Radido, J
January 24, 2024
IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW ORDER OF MANDAMUS AND IN THE MATTER OF ENFORCEMENT OF COURT ORDERS AND DECREE AGAINST THE GOVERNMENT AND IN THE MATTER OF THE GOVERNMENT PROCEEDINGS ACT AND IN THE MATTER OF THE COUNTY GOVERNMENTS ACT
Between
Republic
Applicant
and
County Government of Kisumu
1st Respondent
County Secretary, County Government of Kisumu
2nd Respondent
CFO Finance, County Government of Kisumu
3rd Respondent
CEC Finance & Economic Planning, County Government of Kisumu
4th Respondent
and
Humphrey Okuku Nakitari
Exparte Applicant
Judgment
1. The Court granted leave to Humphrey Okuku Nakitare (the ex-parte applicant) on 6 October 2023, to commence judicial review proceedings against the County Government of Kisumu, the County Secretary, the Chief Finance Officer and County Executive Committee member, Finance & Economic Planning.
2. The ex-parte applicant filed the instant Motion on 17 October 2023, and the Court gave directions on 19 October 2023.
3. The ex-parte applicant’s submissions were not on record by the agreed timeline of 17 December 2023.
4. Despite service, the Respondents did not bother to participate in the proceedings or file submissions.
5. Judgment was reserved to 31 January 2024.
6. On 27 November 2023, the Deputy Registrar notified the parties to appear in Court on 5 December 2023 in order or the Court to inform the parties of a change in the date for delivery of judgment. None of the parties appeared and the Court directed the Deputy Registrar to inform them that the judgment would be delivered on 24 January 2024 and not 31 January 2024.
7. The Court has considered the Motion and the law and finds that Motion is incompetent.
8. One, the ex-parte applicant filed fresh affidavits and statutory statement instead of exhibiting or attaching the affidavits and statutory statement filed while seeking leave to commence judicial review proceedings.
9. Two, the ex-parte applicant did not secure the leave of the Court to file the new affidavits/statutory statement.
10. Three, the ex-parte applicant did not exhibit a copy of Certificate of Costs to support the contention that costs had been taxed.
11. Lastly, the ex-parte applicant did not place before the Court a Certificate of Order against the County Government.
Conclusion and Orders 12. Flowing from the above, the Motion dated 16 October 2023 is found incompetent and it is struck out with no order on costs.
DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 24TH DAY OF JANUARY 2024. RADIDO STEPHEN, MCIARBJUDGEAppearancesFor ex-parte applicant Amondi & Co. AdvocatesRespondents did not participateCourt Assistant Chrispo Aura