[2022] KEELC 194 (KLR)
The court determined that it could not proceed to write or deliver judgment in the absence of a substantive Notice of Motion, as the matter was not properly before the court for determination. The absence of the Notice of Motion meant that there was no valid application upon which the court could adjudicate. In the...
Source-derived case information.
- Citation
- [2022] KEELC 194 (KLR)
- Parties
- Applicant: Benjamin Gitere Kimari; Applicant: Hannah Ngina Kenneth Kimari; Respondent: Land Registrar Nakuru Land Registry
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Judicial Review Appeal E003 of 2021
- Procedural Posture
- Miscellaneous Application / Directions Prior to Judgment; Substantive Notice of Motion Not Filed
- Outcome
- No judgment delivered; directions issued for further mention and proceedings at Nakuru.
- Judges
- DO Ohungo
- Legal Topics
- Judicial Review, Mandamus, Land Restriction Removal, Notice of Motion Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Gitere Kimari
Applicant
Hannah Ngina Kenneth Kimari
Applicant
Land Registrar Nakuru Land Registry
Respondent
Procedural Posture
Miscellaneous Application / Directions Prior to Judgment; Substantive Notice of Motion Not Filed
Legal Issues
- 1 Whether the court can proceed to judgment in the absence of a substantive Notice of Motion.
- 2 Whether parties should be allowed to address the court on the failure to file the substantive Notice of Motion.
Ratio Decidendi
The court determined that it could not proceed to write or deliver judgment in the absence of a substantive Notice of Motion, as the matter was not properly before the court for determination. The absence of the Notice of Motion meant that there was no valid application upon which the court could adjudicate. In the interest of justice and procedural fairness, the court found it necessary to give the parties an opportunity to address the court on the procedural lapse and to determine whether the applicants should be allowed to file the Notice of Motion at this stage or what other steps should be taken. The court therefore issued directions for the matter to be mentioned before the...
Court Disposition
No judgment delivered; directions issued for further mention and proceedings at Nakuru.
Orders
- The matter will be mentioned on 25th May 2022 before the Environment and Land Court at Nakuru for further directions.
- The Deputy Registrar to notify parties of the mention date.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
ELCJR No. E003 OF 2021
BENJAMIN GITERE KIMARI .....................................................1ST APPLICANT
HANNAH NGINA KENNETH KIMARI.....................................2ND APPLICANT
(Administrators of the estate of the late Kenneth Kimari Kahura)
VERSUS
LAND REGISTRAR NAKURU LAND REGISTRY....................RESPONDENT
DIRECTIONS
1. Through Chamber Summons dated 18th March 2021, the applicants herein sought leave to apply for an order of mandamus “to remove and/or lift the restriction pursuant to the provision of Section 78 (1) & (2) of the Land Registration Act 2012 to all that property known as Land Reference Nakuru Municipality Block 5//294”. I dealt with the application on 22nd March 2021 and granted leave as captured above. I additionally ordered that the substantive Notice of Motion be filed within 21 days from 22nd March 2021. I further scheduled the matter for mention for directions regarding disposal of the substantive Notice of Motion.
2. When the matter came up for the mention, counsel for the applicant informed the court that the applicants had filed the substantive Notice of Motion on 8th April 2021. On his part, learned litigation counsel appearing for the respondent indicated to the court that the respondent would only respond to the Notice of Motion through grounds of opposition. Parties also sought and were granted directions for filing and exchanging written submissions on the Notice of Motion. Since I noted that the Notice of Motion was not on the record, I made a further order that the applicants ensure that a copy is placed on record in readiness for the next mention of 20th September 2021 with a view to scheduling a date of judgment. As fate would have it, I proceeded on transfer to another station before the next date. Come 20th September 2021, the matter was placed before my brother Mwangi Njoroge J who promptly ordered that the file be sent to me to write judgment.
3. In the process of perusing the file to prepare judgment, I could not locate any substantive Notice of Motion in the file. I then made enquiries through the Deputy Registrar of the court and it transpired that the applicants did not file any Notice of Motion. As strange as it sounds, both sides had filed submissions on a non-existent Notice of Motion when the matter was placed before the court for mention on 20th September 2021. Since the matter is before me purely for preparation of judgment and I do not have any opportunity to mention the matter with a view to getting the parties’ respective positions on whether the applicants may be allowed to file the Notice of Motion at this stage, I have agonised over what to do.
4. I have ultimately come to the conclusion that I cannot proceed to write judgment. The matter was actually not ready for judgment in the absence of a substantive Notice of Motion. In the interest of justice, I consider that it is necessary that the parties be given a chance to address the court on the current scenario. The court will then determine whether to allow the filing of the Notice of Motion at this stage or what other step to take. All those proceedings and processes should take place before the court at Nakuru where the matter is pending. I will in the circumstances not write any judgment herein but will give directions instead.
5. In view of the foregoing, I give the following directions:
a) This matter will be mentioned on the 25th May 2022 before the Environment and Land Court at Nakuru for further directions. The Deputy Registrar to notify parties.
b) Considering that the matter is currently not ready for judgment, all future proceedings including hearing and determination of the matter be undertaken before the Environment and Land Court at Nakuru.
Dated, signed and delivered at Kakamega this 27th day of April 2022.
D. O. OHUNGO
JUDGE
Delivered through electronic mail in the presence of:
Court Assistant: E. Juma