[2023] KEHC 24959 (KLR)
The court held that the provisions of Order 53 Rules 1 and 3 of the Civil Procedure Rules are couched in mandatory terms, requiring that leave must be obtained before filing a substantive application for judicial review orders such as certiorari and prohibition. The applicant filed the substantive Notice of Motion...
Source-derived case information.
- Citation
- [2023] KEHC 24959 (KLR)
- Parties
- Applicant: Republic; Respondent: Director of Public Prosecution; Respondent: Inspector General of Police; Respondent: Attorney General; Respondent: The Chief Magistrates Court, Milimani Criminal Court Division; Applicant: Parminder Singh Manku
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E049 of 2023
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application struck out
- Judges
- JM Chigiti
- Legal Topics
- Judicial Review Procedure, Leave to Apply, Order 53 Civil Procedure Rules, Certiorari and Prohibition, Procedural Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Director of Public Prosecution
Respondent
Inspector General of Police
Respondent
Attorney General
Respondent
The Chief Magistrates Court, Milimani Criminal Court Division
Respondent
Parminder Singh Manku
Applicant
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the substantive Notice of Motion for judicial review orders can be filed without leave of the court.
- 2 Whether failure to obtain leave renders the application fatally defective and incompetent.
Ratio Decidendi
The court held that the provisions of Order 53 Rules 1 and 3 of the Civil Procedure Rules are couched in mandatory terms, requiring that leave must be obtained before filing a substantive application for judicial review orders such as certiorari and prohibition. The applicant filed the substantive Notice of Motion without first obtaining leave, contrary to these mandatory procedural requirements. The court emphasized that such procedural defects are not mere technicalities but go to the root of the jurisdiction to entertain the application. Consequently, the Notice of Motion was found to be fatally defective and incompetent, and was struck out with no orders as to costs.
Court Disposition
application struck out
Orders
- The Notice of Motion dated 13th April, 2023 is struck out for being filed without leave of the court.
- No orders as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
Republic v Director of Public Prosecution & 3 others; Manku (Exparte Applicant) (Miscellaneous Civil Application E049 of 2023) [2023] KEHC 24959 (KLR) (Judicial Review) (27 October 2023) (Judgment)
Neutral citation: [2023] KEHC 24959 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Judicial Review
Miscellaneous Civil Application E049 of 2023
JM Chigiti, J
October 27, 2023
Between
Republic
Applicant
and
Director of Public Prosecution
1st Respondent
Inspector General of Police
2nd Respondent
Attorney General
3rd Respondent
The Chief Magistrates Court, Milimani Criminal Court Division
4th Respondent
and
Parminder Singh Manku
Exparte Applicant
Judgment
1. By a Chamber Summon dated 13th April, 2023 ‑ brought under Section 9 of the Fair Administrative Action Act; Sections 8 and 9 of the Law Reform Act (Chapter 26 the Laws of Kenya); Order 53, Rule 1, 2, 3 & 4 of the Civil Procedure (Revised (sic) Rules) ‑ the ex-parte applicant sought for leave to inter alia commence judicial review proceedings seeking prerogative orders of certiorari and prohibition.
2. The Applicant filed the Chamber Summon application and Substantive Notice of Motion application on 13th April, 2023. On 14th April, 2023 the ex-parte applicant was granted leave by this court to, inter alia, commence judicial review proceedings.
3. The upshot of the foregoing is that the Notice of Motion is filed without leave.
4. Order 53, Rule 3 of the Civil Procedure Rules provides for application to be by notice of motion. It states that;“3. (1)When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.” (Emphasis Added).
5. Additionally, Order 53, Rule 1 of the Civil Procedure Rules, provides that applications for mandamus, prohibition, and certiorari to be made only with leave. It states,“1. (1)No application for an order of mandamus, prohibition, or certiorari shall be made unless leave therefor has been granted in accordance with this rule.” (Emphasis Added)
6. Clearly, Order 53 Rule 1 and 3 of the Civil Procedure Rules are couched in mandatory terms. Therefore, a substantive notice of motion application, for prerogative orders, can only be properly filed before this court upon the granting of leave. Also, the substantive application should be filed within twenty-one (21) days. However, the court, in some instances, may grant extension of time to file the substantive application out of time.
7. It then follows that the Notice of Motion dated 13th April, 2023 is fatally defective and incompetent, for being filed in absence of leave. The same is struck out with no orders as to cost.
It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 27TH OCTOBER 2023. ........................JOHN CHIGITI (SC)JUDGE