[2005] KEHC 405 (KLR)
The court found that the ex-parte applicants failed to comply with the mandatory procedural requirements under Order LIII of the Civil Procedure Rules by not issuing notice to the Registrar and by instituting the application by Notice of Motion instead of Chamber Summons. These omissions were not justified and,...
Source-derived case information.
- Citation
- [2005] KEHC 405 (KLR)
- Parties
- Applicant: Republic; Respondent: Land Disputes Tribunal Kapsabet Division Chief Kapsabet Location; Interested Party: Pauline Jepkemboi; Applicant: Raphael Tanui; Applicant: Kipkemboi Tenai
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 48 of 1999
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- application struck out
- Judges
- JW Gacheche
- Legal Topics
- Judicial Review, Prerogative Orders, Certiorari, Prohibition, Procedural Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Land Disputes Tribunal Kapsabet Division Chief Kapsabet Location
Respondent
Pauline Jepkemboi
Interested Party
Raphael Tanui
Applicant
Kipkemboi Tenai
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether failure to comply with mandatory procedural requirements under Order LIII of the Civil Procedure Rules renders the application fatally defective.
- 2 Whether the application was properly instituted by way of Notice of Motion instead of Chamber Summons as required.
Ratio Decidendi
The court found that the ex-parte applicants failed to comply with the mandatory procedural requirements under Order LIII of the Civil Procedure Rules by not issuing notice to the Registrar and by instituting the application by Notice of Motion instead of Chamber Summons. These omissions were not justified and, being mandatory requirements, their non-compliance rendered the application fatally defective. The court therefore upheld the preliminary objection and struck out the application with costs to the interested party.
Court Disposition
application struck out
Orders
- The application is struck out with costs to the interested party.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
MISC CIV APPLI 48 OF 1999
REPUBLIC …………………………………………..…........................……………….……… APPLICANT
LAND DISPUTES TRIBUNALKAPSABET DIVISION
CHIEF KAPSABET LOCATION …………….........................…...……………………. RESPONDENTS
VERSUS
PAULINE JEPKEMBOI ………………......................…………………………… INTERESTED PARTY
EX-PARTE .............................................................................. RAPHAEL TANUI & KIPKEMBOI TENAI
R U L I N G
Pauline Jepkemboi who is the interested party herein has raised a preliminary objection to these proceedings and it is her contention that the application, which was filed by Raphael Tanui and Kipkemboi Tenai is fatally defective, incompetent and bad in law for several reasons.
Briefly, Tanui and Tenai whom I shall now refer to as ‘the ex-parte applicants’, initially moved this court on 2/5/98 by way of a Notice of Motion and though they didn’t quote the sections of the law which they intended to rely on, it is clear from their prayers, that they were seeking the prerogative orders of certiorari and prohibition, which in my opinion fall under order LIII of the Civil Procedure Rules.
There is no evidence that the two had issued notices to the Registrar as is mandatorily required under rule 1 (3) of the aforementioned order, and in my own estimation there was no good cause for lack of complying with that mandatory requirement, an omission, which I dare say renders the application fatally defective.
But that was not all, for contrary to the mandatory requirement that the ex-parte applicants move the court by way of a Chamber Summons (Order LIII rule 1 (2)), they appear to have moved the court by way of a Notice of Motion.
It is for the above reasons that I find that the application was fatally defective from its inception and the same cannot be allowed to remain on the records.
I do therefore uphold the preliminary and order that this application be struck out with costs to the interested party.
Dated and delivered at Eldoret this 20th day of September 2005.
Jeanne Gacheche
Judge
Delivered in the presence of:
No appearance for ex-parte applicants or interested party
No appearance for respondents