[2019] KEELRC 1020 (KLR)
The court found that it was not functus officio and retained jurisdiction to entertain an application to set aside or review its own orders in appropriate circumstances. However, the application by the Respondent/Applicant was dismissed on the basis that the orders of certiorari previously granted were final in...
Source-derived case information.
- Citation
- [2019] KEELRC 1020 (KLR)
- Parties
- Applicant: Republic; Respondent: County Government of Laikipia; Applicant: Joseph Mwangi Maina
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 2 of 2019
- Procedural Posture
- Judicial Review Application / Ruling on Application to Set Aside Ex Parte Orders
- Outcome
- application dismissed with costs to the ex parte applicant/respondent
- Judges
- AN Makau
- Legal Topics
- Judicial Review, Setting Aside Orders, Functus Officio, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
County Government of Laikipia
Respondent
Joseph Mwangi Maina
Applicant
Procedural Posture
Judicial Review Application / Ruling on Application to Set Aside Ex Parte Orders
Legal Issues
- 1 Whether the court is functus officio and thus lacks jurisdiction to entertain the application to set aside its orders.
- 2 Whether the Respondent/Applicant was properly served with suit papers and whether ex parte proceedings should be set aside.
- 3 Whether the application to set aside is merited in law.
Ratio Decidendi
The court found that it was not functus officio and retained jurisdiction to entertain an application to set aside or review its own orders in appropriate circumstances. However, the application by the Respondent/Applicant was dismissed on the basis that the orders of certiorari previously granted were final in nature, and the only recourse available to the Respondent/Applicant was to appeal, which it failed to do. The court held that the application to set aside was devoid of merit and that the attack on the court's jurisdiction by the ex parte Applicant/Respondent was misplaced. The court further noted that the authorities cited by the ex parte Applicant/Respondent were either not...
Court Disposition
application dismissed with costs to the ex parte applicant/respondent
Orders
- The application by the Respondent/Applicant to set aside the orders and decree of the court is dismissed.
- Costs awarded to the ex parte Applicant/Respondent.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NYERI
JUDICIAL REVIEW NO. 2 OF 2019
IN THE MATTER OF AN APPLICATION BY JOSEPH MWANGI MAINA
FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION
AND
IN THE MATTER OF THE COUNTY GOVERNMENTS ACT, 2012
AND
IN THE MATTER OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA
AND
IN THE MATTER OF FAIR ADMINISTRATIVE ACTIONS ACT NO. 4 OF 2015
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT, 2011
AND
IN THE MATTER OF THE EMPLOYMENT ACT 2007
AND
IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010
BETWEEN
REPUBLIC...............................................................................APPLICANT
AND
THE COUNTY GOVERNMENT OF LAIKIPIA...........RESPONDENT
EX PARTE JOSEPH MWANGI MAINA
RULING
1. Before me is the Respondent/Applicant’s notice of motion application dated 13th May 2019 seeking to set aside the orders and decree of the court. The Respondent/Applicant asserts that the Petitioner’s advocate did not serve it with the suit papers and that the matter proceeded ex parteto the detriment of the Respondent/Applicant. The Respondent/Applicant therefore seeks that the proceedings herein be set aside and the matter heard de novo and the Respondent/Applicant be granted unconditional leave to defend. The ex parteApplicant/Respondent is naturally opposed and filed a notice of preliminary objection asserting the motion was a non-starter and incurably defective. It was also asserted that the court is functus officio and therefore lacks jurisdiction to hear and determine the Respondent/Applicant’s application.
2. The parties filed submissions in support and opposition of the application. The Respondent/Applicant submitted that it had laid a sufficient basis for the court to reopen the proceedings and grant the Respondent/Applicant unconditional leave to defend. The Respondent/Applicant cited the case of Republic vDirector of Survey &2 Others ex parteSayani Investments [2018] eKLRon the rationale underlying the court’s discretionary power to set aside. The Respondent/Applicant asserts that the court is not functus officioand can grant the orders sought by the Respondent/Applicant.
3. The ex parteApplicant/Respondent submitted that the motion was incompetent and ab abuse of the process of the court. It was argued that the Advocates for the Respondent/Applicant could not have audience before the court as they had not sought leave prior to filing the judgment as the memorandum was filed after the judgment of the court. The ex parteApplicant/Respondent submitted that the court was functus officiohaving pronounced itself. The ex parteApplicant/Respondent cited the cases of Supreme Court of Kenya Civil Application No. 11 of 2016 – Hon. Lady Justice Kalpana Rawal H. vJudicial Service Commissionand Supreme Court of Kenya Petition No. 10 of 2013 – Hassan Ali Joho &Another vSuleiman Said Shabbal &2 Others. The ex parteApplicant/Respondent submitted that under Section 8(3) and (5) of the Law Reform Act orders issued in judicial review proceedings are final subject only to an appeal at the Court of Appeal.
4. In the case the ex parteApplicant asserts that the court is functus officio. That cannot be further from the truth as the court can hear a review application or an application to set aside. I therefore agree with the Respondent/Applicant that the attack by the ex parteApplicant/Respondent was misplaced and misguided. In the submissions filed, the ex parteApplicant/Respondent cited cases that were neither produced nor expounded on. For instance, the case cited as an authority to reiterate the Mukisa Biscuitcase being the Supreme Court of Kenya Petition No. 10 of 2013 – Hassan Ali Joho &Another vSuleiman Said Shabbal &2 Others was neither attached to the submissions or the list of authorities. What was actually attached was the decision of the Court of Appeal reported as Hassan Ali Joho &Another vSuleiman Said Shabbal &2 Others [2013] eKLR which had no bearing to the arguments being advanced. Be that as it may, the application is however bound to fail on account of the law. The court granted orders of certiorariwhich quashed the decision of the Respondent/Applicant. The only recourse that was open was an appeal but none was filed. The application by the Respondent/Applicant is therefore devoid of merit and is dismissed with costs to the ex parteApplicant.
It is so ordered.
Dated and delivered at Nyeri this 23th day of July 2019
Nzioki wa Makau
JUDGE
I certify that this is a
true copy of the Original
Deputy Registrar