[2019] KEELRC 1266 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

JUDICIAL REVIEW NO. 33 OF 2018

IN THE MATTER OF: AN APPLICATION FOR LEAVE TO APPLY

FOR ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS

AND

IN THE MATTER OF: WORK INJURY BENEFITS ACT CAP 236

AND

IN THE MATTER OF: THE CONSTITUTION OF KENYA, THE LAW REFORM ACT CAP 26,

ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010 AND ALL

OTHER ENABLING PROVISIONS OF THE LAW

AND

IN THE MATTER OF: LEGALITY AND PROPRIETY OF EXPARTE PROCEEDINGS

ANDCONSEQUENTIAL JUDGMENTS AGAINAT THE APPLICANT IN

MILIMANI LAW COURTS CIVIL SUIT NO. 34 OF 2018

KIAMBU LAW COURTS CIVIL SUIT NO. 236 OF 2017

KIAMBU LAW COURTS CIVIL SUIT NO. 241 OF 2017

KIAMBU LAW COURTS CIVIL SUIT NO. 494 OF 2017

KIAMBU LAW COURTS CIVIL SUIT NO. 574 OF 2017

BETWEEN

REPUBLIC APPLICANT

V

JOHN PAUL WEKESA 1ST RESPONDENT

JOHN WANDERI 2ND RESPONDENT

CHANO KYALO 3RD RESPONDENT

ANTHONY OPONDO 4TH RESPONDENT

ERASTUS ORENGE 5TH RESPONDENT

CHIEF MAGISTRATES COURT, KIAMBU LAW COURTS 6TH RESPONDENT

CHIEF MAGISTRATES COURT, MILIMANI LAW COURTS 7TH RESPONDENT

AND

CHINA NATIONAL AERO-TECHNOLOGY ENGINEERING CORPORATION

LTD EX-PARTEAPPLICANT

JUDGMENT

1. China National Aero-Technology Engineering Corporation Ltd (ex-parte applicant) was granted leave on 28 November 2018 to apply for judicial review orders against the decisions of the 6th and 7th Respondents, purportedly issued without jurisdiction.

2. While granting leave, the ex-parte applicant was directed to file in Court and serve copies of judgments in Civil Case No. 34 of 2018 and Civil Case No. 236 of 2017 before consideration of grant of leave in respect of the 2 judgments.

3. The ex-parte applicant did not comply with the order and therefore there is no competent application before Court against the 2 judgments.

4. Upon grant of leave in respect of the other 3 Causes, the ex-parte applicant filed a motion on 9 November 2018 seeking orders

a) An Order of Certiorari to remove into this Court and quash the proceedings undertaken against the ex-parte applicant herein before the 6th and 7th Respondents in Magistrates Court in Milimani Civil Case No. 34 of 2018, John Paul Wekesa, Kiambu Civil Case No. 236 of 2017 John Wanderi, Kiambu Civil Case No. 241 of 2017 Chano Kyalo, Kiambu Civil Case No. 494 of 2017, Anthony Opondo, Kiambu Civil Case No. 574 of 2017 Erastus Orenge for having been undertaken without jurisdiction.

b) An order of Prohibition prohibiting the Respondents from undertaking any further proceedings, undertaking execution proceedings by way of attaching the ex-parte applicant’s assets based on the decretal sums obtained without jurisdiction.

c) An order of mandamus compelling the 1st to 5th Respondents to discharge and/or release the ex-parte applicant’s assets attached in execution of the decretal sums consequent upon the irregular proceedings.

5. K. Kibiku & Co. Advocates filed a Notice of Appointment of Advocates on 12 November 2018, to act for the 1st, 4th and 5th Respondents.

6. On 19 December 2018, the ex-parte applicant filed another motion seeking orders

A) An Order of Certiorari to remove into this Court and quash the proceedings undertaken against the ex-parte applicant herein before the 6th and 7th Respondents in Magistrates Court in Kiambu Civil Case No. 241 of 2017 Chano Kyalo, Kiambu Civil Case No. 494 of 2017, Anthony Opondo, Kiambu Civil Case No. 574 of 2017 Erastus Orenge for having been undertaken without jurisdiction.

B) An order of Prohibition prohibiting the Respondents from undertaking any further proceedings, undertaking execution proceedings by way of attaching the ex-parte applicant’s assets based on the decretal sums obtained without jurisdiction.

C) An order of mandamus compelling the 3rd to 5th Respondents to discharge and/or release the ex-parte applicant’s assets attached in execution of the decretal sums consequent upon the irregular proceedings.

7. On 7 February 2019, the ex-parte applicant applied to withdraw the proceedings against the 1st, 2nd,5th, 6th and 7th Respondents, and the Court accepted the application.

8. In consideration of the motion filed in Court on 19 December 2018 and the withdrawal of the 1st, 2nd,5th, 6th and 7th Respondents, the only valid and active proceedings are against the 3rd and 4th Respondents, anchored on the latter motion.

9. When the motion of 19 December 2018 came up for hearing on 14 February 2019, the Court was not satisfied with the service, and it directed the ex-parte applicant to serve the 3rd Respondent through the address he had used in a replying affidavit filed in Court previously, and the 4th Respondent. Hearing was rescheduled to 26 March 2019.

10. When the motion was called out on the scheduled hearing date, none of the remaining Respondents were in Court and the Court allowed the ex-parte applicant to proceed because there was evidence of service.

11. The Court has keenly considered the record before it and come to the conclusion that the application has no merit.

12. Despite service of process being a running theme during Court appearances, there is absolutely nothing on record to demonstrate that the 6th and 7th Respondents were served with the motion(s) filed in Court on 9 November 2018 and 19 December 2018 before the application to remove them from the proceedings was made.

13. The affidavits of service on record attest to service of mention notices only.

14. Secondly, the ex-parte applicant was seeking to quash the decisions of the 6th and 7th Respondents.

15. For reasons not disclosed, the ex-parte applicant withdrew the said Respondents from the proceedings.

16. By removing the said 2 Respondents, in the view of the Court, the proceedings became a shell rendering the application incompetent and fatally defective. It was the decisions of the removed Respondents under challenge.

17. Indeed, the 6th and 7th Respondents were the true Respondents, the 1st to 5th Respondents should have been enjoined as Interested Parties.

18. Lastly, when granting leave (and that the leave do operate as stay) to institute judicial review proceedings on 28 November 2018, the Court set a condition (deposit of the decretal sum into Court) which was not complied with by the ex-parte applicant.

Conclusion and Orders

19. Arising from the above, the Court has no option but to dismiss the proceedings herein.

20. Each party bears own costs

Delivered, dated and signed in Nairobi on this 5th day of July 2019.

Radido Stephen

Judge

Appearances

For ex-parte applicant Mr. Abdullahi instructed by Lisinko, Njoroge & Gathogo Advocates

For 4th Respondent K.Kibiku & Co. Advocates

Court Assistant Lindsey