[2017] KEHC 2778 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 121 OF 2016

IN THE MATTER OF: ORDER 53 RULE 3 OF THE CIVIL PROCEDURES RULES

AND

IN THE MATTER OF: AN APPLICATION BY ATLAS COPCO EASTERN AFRICA LIMITED FOR JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS

AND

IN THE MATTER OF: CONSTITUTION OF KENYA 2010 AND THE KENYA ROADS ACT 2007

IN THE MATTER OF : AN APPLICATION BY ATLAS COPCO EASTERN AFRICA LIMITED FOR JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF CERTIORARI TO QUASH THE DECISION DATE 15TH SEPTEMBER 2015 BY KENYA URBAN ROADS AUTHORITY REFUSING GRANT OF AUTHORITY TO ATLAS COPCO EASTERN AFRICA TO CONSTRUCT A STANDARD EXIT TO LINK ITS PREMISES TO THE SERVICE ROAD FOR ACCESS TO AIRPORT NORTH ROAD.

IN THE MATTER OF : AN APPLICATION BY ATLAS COPCO EASTERN AFRICA LIMITED FOR JUDICIAL REVIEW TO APPLY FOR ORDERS OF MANDAMUS TO COMPEL KENYA URBAN ROADS AUTHORITY(KURA) TO GRANT THE APPLICANT AUTHORITY TO CONSTRUCT A STANDARD EXIT TO THE SERVICE ROAD TO LINK TO AIRPORT NORTH ROAD FOR ACCESS SAFETY AND REMOVE TEMPORARY RAMP PLACED AT THE EXIT.

IN THE MATTER OF: AN APPLICATION BY ATLAS COPCO EASTERN AFRICA LIMITED FOR JUDICIAL REVIEW TO APPLY FOR ORDERS OF PROHIBITION AGAINST KENYA URBAN ROADS AUTHORITY (KURA) FROM ERECTING RAMPS ON ITS EXIT GATE.

BETWEEN

REPUBLIC.............................................................................................APPLICANT

-VERSUS-

KENYA URBAN ROAD AUTHORITY.......................................1ST RESPONDENT

CHINA ROADS AND BRIDGE CORPORATION…………....2ND RESPONDENT

KENYA POWER & LIGHTINGCOMPANY LIMITED...........INTERESTED PARTY

Exparte

ATLAS COPCO EASTERN AFRICA LIMITED

JUDGMENT OF THE COURT

Issue for determination:

Whether “ the court shall strike out pleadings which are not paid for by a party who is not legally exempted from payment of court fees.

1. On 16th March 2016 Honourable Odunga J granted to the exparte applicant herein Atlas Copco Eastern Africa Limited, leave of court to commence Judicial Review proceedings against the respondents Kenya Urban Roads Authority (KURA) and China Roads and Bridges Corporation (CRBC).

2. The interested party is Kenya Power and Lighting Company Ltd (KPLC).

3. The substantive notice of motion was to be filed and served within 21 days of the date when leave was granted on 5th April 2016 the exparte applicant Atlas Copco Eastern Africa Limited did ‘file’ a notice of motion dated the same day.

4. Initially the 1st respondent raised a preliminary objection to the effect that the chamber summons for leave was filed in court after 6 months of the date of the impugned decision but this court declined to uphold the preliminary objection after establishing that the application for leave was filed within 6 months of the date of the impugned decision. The ruling of the court is dated 19th July 2016.

5. In the instant case, the exparte applicant seeks for the following three Judicial Review Orders:

1) Certiorari to remove into the Honourable court and quash the decision of Kenya Urban Roads Authority (KURA) the 1st respondent made on 15th September 2015 refusing/declining the application by the applicant to construct a standard exist from its premises on LR No. 24808 for access to Airport North Road for the applicant’s heavy vehicles and equipments in safety and conveniences;

2) Mandamus to compel the 1st respondent to authorize and approve the construction of a standard exit as objectively proposed by the applicant for exit as objectively proposed by the applicant for exit and access to the service road leading to Airport North Road from its premises on LR No. 24809.

3) Prohibition against the 1st respondent prohibiting from erecting or placing blockage ramps on the existing temporary exit of the applicant.

4) Costs of the application be provided for.

6. The notice of motion is predicated on the statutory statement, and verifying affidavit sworn by Joseph Muchina and exhibits accompanying the chamber summons for leave.

7. The motion is opposed by the respondents while the interested party Kenya Power and Lighting Company filed an affidavit in reply contending that the application is incompetent, and does not disclose any actionable cause of action against the interested party.

8. But before I delve into the merits of the motion, my attention in the course of perusal of the court file was drawn to the fact that there is no court receipt showing the court fees paid for the notice e of motion dated 5th April 2017.

9. I therefore embarked on the scrutiny of the entire court record just in case the court receipt could have been mislaid but found none.

10. For that reason alone, I could not delve into the merits of the notice of motion. I have to decide on the single issue of whether the notice of motion dated 5th April 2017 is filed and or whether it is competently on record. If the answer to the question of competence of the notice of motion is in the negative, the question is whether the notice of motion should be struck out notwithstanding the merits thereof.

Striking out of pleadings

11. This court is very much alive to the overriding principle of law that deviations from and lapses in form and procedures which do not go to the jurisdiction of the court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not to be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical.

12. In such cases, courts are usually called upon to spare the parties the draconian approach of striking out pleadings. Thus, where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Further, justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.

13. The above is the spirit and letter of Section 1A, 1B of the Civil Procedure Act and Article 159 of the Constitution of Kenya 2010. However, where a party or his advocates is well aware of the legal process and what is required of him in terms of court filing fees, but proceeds to evade payment of such court fees which in turn denies the people of Kenya essential revenue for service delivery, such person does not deserve the exercise of discretion of the courts and therefore the provisions of Section 96 of the Civil Procedure Act Cap 21 Laws of Kenya would not come to his aid.

14. In this case, the exparte applicant filed chamber summons on 15th March 2016 seeking for leave of court to institute Judicial Review proceedings which leave was granted by the court. The applicant in seeking audience before the court did pay kshs 2,255 as assessed court fees.

15. However, after obtaining leave of court to institute substantive proceedings as required by law, the applicant did not pay any court fees on 5th April 2016 when it filed the notice of motion dated the same day. Neither is there any evidence that court fees was assessed for the filing of the said notice of motion.

16. This court is aware that each of the prayers for the Judicial Review remedies attract a fee of kshs 6,000/-. It follows that for the three Judicial Review prayers of certiorari, mandamus and prohibition, the court and therefore the public lost over kshs 18,000/- in unpaid revenue.

17. I have perused the court file page by page and I am unable to trace any court receipt for the filing of notice of motion.

18. Pleadings are only deemed to be filed in court upon payment of court fees for the filing thereof, unless the party filing is exempted from paying court fees such as the National Government Ministries or County Governments. There are also certain categories of persons who may be exempted from paying court fees and these are paupers, on application.

19. In this case, the exparte applicant does not fall in any of the categories of persons who may be exempted from paying court fees, as it is not a government entity and neither did it apply to be exempted from paying court fees as a pauper in which case, Article 48 of the Constitution on access to justice would be applicable.

20. In addition, there is no application for waiver of payment of part of court fees required for instituting substantive Judicial Review proceedings.

21. A party who is capable of paying court fees and who unilaterally fails to pay such court fees thereby denying the public that much needed revenue must not be allowed to benefit from judicial services.

22. I do not find such omission to be a procedural technicality curable by Section 1A,1B of the Civil Procedure Act or Article 159(2) of the Constitution.

23. The failure to pay court fees at the inception of proceedings and or subsequently is a serious omission which goes to the root or jurisdiction of the court to entertain the motion. Filing of pleadings is not merely receiving a received date stamp from the court registry. It is paying for the services as stipulated in the rules and any party who evades paying court fees whether on its own accord or in collusion with the registry staff pays the ultimate price of having their pleadings struck out.

24. Parties and their advocates must assist the court to administer justice equally. It cannot be that some parties pay for the services while others evade payment by colluding with some unscrupulous court staff.

25. It is the duty of every party who wishes to be heard by the court to ensure that the documents they wish to rely on in pursuing their claim are paid for.

26. In this case, and many other cases that this court has encountered in this Jurisdiction of the High Court, I observe that there is a deliberate attempt by some parties to evade paying court fees and in some cases the court receipts are swapped for different documents to make it appear as if the receipts are genuine but on serious scrutiny, the court has established in some instances, that the court fees and date for the attached receipts do not match the documents filed and the date of filing. Such practices must be discouraged as they touch on the integrity and ethical behavior of the parties and court officials.

27. In South Nyanza Sugar Company Limited v Samwel Osewe Ochillo P/A Ochillo & Company Advocates [2007] eKLRthe Court of Appeal agreed with the High Court decision which struck out a suit for non-payment of court filing fees required to file the plaint and held that there was no valid plaint upon which the court could proceed to deliver a judgment.

28. The Court of Appeal in the above case agreed with a Ugandan case and stated:

“Dealing with a similar situation in the Ugandan case of UNTA EXPORTS LTD VS CUSTOMS [1971] EA 648, Gouldie, J. stated as follows at page 649 letters E to F:-

“I have no doubt whatsoever that both as a matter of practice and also as a matter of law documents cannot validly be filed in the civil registry until fees have either been paid or provided for by a general deposit from the filing advocate from which authority has been given to deduct court fees ………..”

“With respect, we agree and would adopt that principle as being aptly applicable to the issue we are dealing with.”

29. This not being public interest litigation or litigation to advance legitimate public interest or meant to contribute to a[proper understanding of law but aimed at giving the applicant a private gain, there is no justification for non-payment of court fees.

30. It is for the above reasons that having found that there is no evidence that the notice of motion dated 5th April 2017 was paid for, I proceed to strike out the same as being fatally incompetent. I order each party to pay their own costs of the incompetent application.

Dated, signed and delivered at Nairobi this 10th day of October, 2017.

R. E. ABURILI

JUDGE

In the presence of:

Mr Njagi for the exparte applicant

Miss Daido h/b for Mr Munene for Respondent

Mr Sigei for Interested Party

CA: George