[2019] KEHC 1739 (KLR)
The court found that although the applicant failed to file a substantive motion after leave was granted, both the Deputy Registrar and the respondent treated the prematurely filed motion as if it were properly before the court. The respondent was not prejudiced, having filed a comprehensive response and admitted...
Source-derived case information.
- Citation
- [2019] KEHC 1739 (KLR)
- Parties
- Applicant: Republic; Respondent: Kisii University; Applicant: James Were Oyuu
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 16 of 2019
- Procedural Posture
- Judicial Review Application / Judgment
- Outcome
- Order of mandamus granted; each party to bear own costs.
- Legal Topics
- Judicial Review, Mandamus, Release of Academic Certificates, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Kisii University
Respondent
James Were Oyuu
Applicant
Procedural Posture
Judicial Review Application / Judgment
Legal Issues
- 1 Whether the applicant was entitled to an order of mandamus compelling Kisii University to release his academic certificate.
- 2 Whether the failure to file a substantive motion after leave was fatal to the applicant's case.
- 3 Whether the respondent would be prejudiced by treating the prematurely filed motion as valid.
Ratio Decidendi
The court found that although the applicant failed to file a substantive motion after leave was granted, both the Deputy Registrar and the respondent treated the prematurely filed motion as if it were properly before the court. The respondent was not prejudiced, having filed a comprehensive response and admitted that the applicant's certificate was processed and not withheld for any valid reason. In the interests of justice, the court deemed the motion valid and granted an order of mandamus compelling Kisii University to release the applicant's academic certificate in Stores and Supplies Management.
Court Disposition
Order of mandamus granted; each party to bear own costs.
Orders
- The respondent, Kisii University, shall forthwith release to the ex-parte applicant, James Were Oyuu, his academic certificate in Stores and Supplies Management.
- Each party shall bear their own costs of these proceedings.
Full Case Text
Judgment text and source record
52 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
JUDICIAL REVIEW APPLICATION NO. 16 OF 2018
IN THE MATTER OF APPLICATION FOR THE ORDER OF MANDAMUS
AND IN THE MATTER OF LAW REFORM ACT SECTION 8 AND 9 (CHAPTER 6)
LAWS OF KENYA
(UNDER ORDER 53, RULES 1, 2 & 3 OF THE CIVIL PROCEDURE RULES
CAP. 21 OF THE LAWS OF KENYA
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT
AND
IN THE MATTER OF UNIVERSITIES ACT NO. 42 OF 2012
AND
IN THE MATTER OF SECTION 10(a) OF THE KISII UNIVERSITY CHARTER
AND
IN THE MATTER OF ARTICLES 10, 22, 23, 47 AND 48 OF THE
CONSTITUTION OF KENYA
BETWEEN
REPUBLIC................................................................................................APPLICANT
VERSUS
KISII UNIVERSITY .............................................................................RESPONDENT
AND
JAMES WERE OYUU .........................................................EX-PARTE-APPLICANT
JUDGMENT
The Applicant, JAMES WERE OYOO, commenced these proceedings by an application dated 26th November 2018.
1. The Chamber Summons by which the proceedings were commenced, sought leave of the Court to enable the Applicant lodge an Application seeking Orders of Mandamus to compel the KISII UNIVERSITYto release the Applicant’s ACADEMIC CERTIFICATES.
2. On 27th November 2018 the Court granted leave to the Applicant to commence proceedings, seeking Mandamus against the Kisii University.
3. When granting leave to the Applicant, the Court directed him to institute the substantive action within 14 days.
4. Finally, the Court ordered that the costs of the Chamber Summons dated 26th November 2018 would be in the cause, in the substantive proceedings.
5. The record of the proceedings shows that on 18th December 2018 the learned Deputy Registrar issued Directions, that the;
“Notice of Motion dated 26/11/2018 is hereby fixed for hearing in Court 1 on 29th January 2019. ”
6. However, on 29th January 2019, the parties failed to attend court, resulting in an order, that the application dated 26th November 2018 be mentioned on 19th March 2019.
7. On 6th June 2019 the court recorded a consent, for the filing of a Replying Affidavit and a Further Affidavit.
8. Ultimately, on 16th July 2019, the Court recorded a consent, for the filing of submissions.
9. On 9th October 2019, the parties informed the Court that they had filed their respective submissions.
10. I have set out the foregoing history of the case, at some length, because the Respondent has now pointed out that the Applicant never lodged any Substantive Application pursuant to the leave which the Court had granted on 27th November 2018.
11. I have carefully perused the record herein, and I found that subsequent to 27th November 2018, when the Court granted leave to the Applicant, no substantive Notice of Motion for Mandamus was filed.
12. However, there is on record a Notice of Motion dated 26th November 2018, pursuant to which the Applicant sought an Order of Mandamus directed at the Vice Chancellor of Kisii University or the Academic Registrar of Kisii University, to compel them to release the Academic Certificate belonging to the Applicant.
13. The specific Certificate being sought by the Applicant is the one issued in respect to Stores and Supplies Management.
14. Upon a strict interpretation of the relevant orders made on 27th November 2018, the Applicant could only have lodged a substantive motion after the Court had granted leave.
15. Therefore, the Motion which was lodged on 26th November 2018 was lodged without leave of the Court and it ought therefore to be struck out.
16. Nonetheless, I note that the learned Deputy Registrar and the Respondent conducted themselves as if the Applicant had actually lodged a substantive Motion.
17. The Respondent filed a comprehensive Replying Affidavit of SETH ONG’UTI, the Assistant Legal Officer of Kisii University.
18. Therefore, I find that the Respondent would not be prejudiced at all if the Applicant is deemed to have filed a legitimate substantive Motion.
19. Mr. Seth Ong’uti deponed thus, in his further Affidavit sworn on 18th June 2019;
“5. THAT in response to paragraph 4 of the Further Affidavit, I wish to state that the Ex-parte Applicant’s certificate in Stores and Supplies Management was processed way back in 2015 and the Respondent has had no reason to withhold it, once the Ex-Parte Applicant had complied with the requirements for issuance of his certificate…..”
20. In the prevailing circumstances, I have come to the conclusion that Justice would be best served by ordering the Respondent to forthwith release to the Ex-parte Applicant, JAMES WERE OYUU, his academic Certificate in Stores and Supplies Management.
21. Each party will meet his own costs of these proceedings
DATED, SIGNED AND DELIVERED AT KISUMU
This 28thday of November2019
FRED A. OCHIENG
JUDGE