[2009] KEHC 1775 (KLR)
The court held that the Notice of Motion was filed five days out of time, contrary to the mandatory requirements of Order LIII Rule 3(1) of the Civil Procedure Rules. The court further held that neither Section 3A of the Civil Procedure Act nor Order XLIX of the Civil Procedure Rules could be invoked to extend time...
Source-derived case information.
- Citation
- [2009] KEHC 1775 (KLR)
- Parties
- Applicant: Republic; Respondent: The Makueni District Land Disputes Tribunal; Respondent: The Embu Provincial Land Appeal Committee; Interested Party: Joseph Kyalo Kavyati; Ex Parte Applicant: Sammy Nzioki
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 97 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- Notice of Motion struck out as filed out of time; costs awarded to the Interested Party.
- Legal Topics
- Judicial Review Procedure, Time Limits for Filing, Order Liii Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The Makueni District Land Disputes Tribunal
Respondent
The Embu Provincial Land Appeal Committee
Respondent
Joseph Kyalo Kavyati
Interested Party
Sammy Nzioki
Ex Parte Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Notice of Motion was filed out of time in breach of Order LIII Rule 3(1) of the Civil Procedure Rules.
- 2 Whether the Motion can be saved by extension of time under Order XLIX or amendment under Section 3A of the Civil Procedure Act.
Ratio Decidendi
The court held that the Notice of Motion was filed five days out of time, contrary to the mandatory requirements of Order LIII Rule 3(1) of the Civil Procedure Rules. The court further held that neither Section 3A of the Civil Procedure Act nor Order XLIX of the Civil Procedure Rules could be invoked to extend time or allow amendment in judicial review proceedings, as Order LIII is a special procedure governed by the Law Reform Act. Since the applicant conceded the procedural defects and the court lacked jurisdiction to cure them, the Notice of Motion was struck out as improperly before the court.
Court Disposition
Notice of Motion struck out as filed out of time; costs awarded to the Interested Party.
Orders
- The Notice of Motion dated 10/6/2008 and filed on 17/6/2008 is struck off.
- Costs awarded to the Interested Party.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT MACHAKOS
CIVIL MISCELLANEOUS APPLICATION 97 OF 2008
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW OF SAMMY NZIOKI AND JOSEPH KYALO KAVYATI
AND
IN THE MATTER OF PROVINCIAL APPEAL COMMITTEE APPEAL NO. 100 OF 2006
AND
IN THE MATTER OF THE SENIOR RESIDENT MAGISTRATE’S COURT AT MAKUENI
BEING LTD NO.2005
BETWEEN
REPUBLIC …………………………………...…...…………...…….. APPLICANT
AND
THE MAKUENI DISTRICT LAND DISPUTES TRIBUNAL........ 1ST RESPONDENT
THE EMBU PROVINCIAL LAND APPEAL COMMITTEE .… 2ND RESPONDENT
AND
JOSEPH KYALO KAVYATI ………………………..…..……. INTERESTED PARTY
AND
SAMMY NZIOKI …………………………………....……. EX-PARTE APPLICANT
RULING ON A PRELIMINARY OBJECTION
1. The objection by the Interested Party is that the Notice of Motion dated 10/6/2008 is defective and should be struck off because it is in breach of Order LIII Rule 3 (i) of the Civil Procedure Rules in that it was filed out of time. A peripheral question is that the Motion is also wrongly intituled as the Republic is not the Applicant.
2. Both issues are conceded but it is argued that on the first, leave to extend time under Order XLIX of the Civil Procedure Rules can be granted and on the second, leave to file a fresh and/or amended motion can be granted under Section 3A of the Civil Procedure Rules.
3. Sadly, the Motion before me cannot be saved by either of the proposed methods. Neither section 3A of the Civil Procedure Act nor Order XLIX of the Civil Procedure Rules apply to matters instituted under the special procedure set out in Order LIII of the Civil Procedure Rules as the latter Rules are made specially and pursuant to section 8 as read with section 9 of the Law Reform Act.
4. Rule 3 (1) of Order LIII aforesaid provides as follows:-
“When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within 21 days by notice of motion to the high Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.”(emphasis added)
5. In this case I granted leave pursuant to Order LIII Rule 1 (1) on 20/5/2008. The Motion to be filed under Rule 3 (1) should have been filed on or before 12/6/2008. The Motion under attack was filed on 17/6/2008, 5 days outside time and it is therefore not properly before court.
6. Since the issue is conceded, the Notice of Motion dated 10/6/2008 and filed on 17/6/2008 is struck off with costs to the Interested Party.
7. Orders accordingly.
Dated and delivered at Machakos this 27thday of May2009.
ISAAC LENAOLA
JUDGE
In presence of: Miss Gichuki for Applicant
Mrs Nduva for Respondent
ISAAC LENAOLA
JUDGE