[2009] KEHC 3077 (KLR)
The court found that the notice of motion for judicial review was filed within the 21-day period ordered by the judge when leave was granted on 9th November 2004. The error in the extracted order, which indicated an incorrect date for the grant of leave, was a clerical mistake and did not affect the substantive...
Source-derived case information.
- Citation
- [2009] KEHC 3077 (KLR)
- Parties
- Applicant: Republic; Respondent: Meru Central District Land Disputes Tribunal; Respondent: John M’Impwi Muthuri; Applicant: Kinugu M’Tuaruchiu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 191 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- MM Kasango
- Legal Topics
- Judicial Review Timelines, Preliminary Objection, Certiorari Applications, Land Disputes Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Meru Central District Land Disputes Tribunal
Respondent
John M’Impwi Muthuri
Respondent
Kinugu M’Tuaruchiu
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the notice of motion for judicial review was filed within the statutory period prescribed by Order LIII Rule 3(1).
- 2 Whether the preliminary objection based on alleged lateness of filing is competent.
Ratio Decidendi
The court found that the notice of motion for judicial review was filed within the 21-day period ordered by the judge when leave was granted on 9th November 2004. The error in the extracted order, which indicated an incorrect date for the grant of leave, was a clerical mistake and did not affect the substantive timeline for filing. The preliminary objection was therefore based on a misunderstanding caused by this error, and there was no basis for striking out the application. The preliminary objection was dismissed, and costs were ordered to be in the cause due to the misleading nature of the extracted order.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 23rd June 2008 is dismissed.
- Costs of the preliminary objection shall be in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT MERU
MISCELLANEOUS CIVIL CASE 191 OF 2004
IN THE MATTER OF: AN APPLICATION BY KINUGU
M’TUARUCHIU FOR LEAVE TOAPPLY FOR JUDICIAL REVIEW
AND
IN THE MATTER OF: LAND DISPUTES TRIBUNAL ACT
NO. 18 OF 1990 AND THEREGISTERED LAND ACT (CAP 300)
AND
IN THE MATTER OF: MERU CENTRAL DISTRICT LAND
DISPUTES TRIBUNAL CASE NO.52/2004 AND THE CHIEFMAGISTRATE MERU LAND
DISPUTES TRIBUNAL CASE NO.78 OF 2004
AND
IN THE MATTER OF: PARCEL OF LAND NO.ABOTHUGUCHI/L-KAONGO/175
REPUBLIC ……………………………..........................................……………… APPLICANT
VERSUS
THE MERU CENTRAL DISTRICTLAND DISPUTES TRIBUNAL...1ST RESPONDENT
JOHN M’IMPWI MUTHURI …………..........................................……… 2ND RESPONDENT
EX-PARTE: KINUGU M’TUARUCHIU
RULING
By notice of motion dated 24th November 2004, the ex parte applicant seeks an order of certiorari to remove to the High Court for the purpose of quashing an award of Meru Central District Land Dispute Tribunal. By Order LIII Rule 3 (1) that motion application should have been within 21 days from the date leave was granted to file the same. The 1st respondent has filed a preliminary objection in the following terms:-
“The notice of motion dated 24. 11. 2004 was filed out of stipulated period and as such is incompetent and should be struck out with costs.”
The chamber summons application seeking leave to file the judicial review application was dated 22nd September 2004. It was heard by Hon. Mr. Justice Onyancha on 9th November 2004. On that same date, the said judge granted leave as sought and ordered the ex parteapplicant to file the notice of motion within 21 days from that date.
The ex parteapplicant filed that motion on 24the November 2004. The 21st day from the date when leave was granted was 30th November 2004. The ex parte applicant’s motion was filed well within the 21 days. What I believe provoked the respondent’s preliminary objection was the order that was extracted after the order of leave was issued. In that extracted order there was an error in the date when leave was granted.
The extracted order indicated that leave was granted on 9th September 2004. That error led the respondent to filing the preliminary objection believing that the substantive notice of motion should have been on 30th September 2004.
Having unraveled the error that caused the respondent to move on the preliminary objection, there is but only one order that this court can issue. The order of the court is that the preliminary objection dated 23rd June 2008 is dismissed. Since the respondent was misled by an order extracted by the ex parte applicant, I order that the costs of that preliminary objection be in the cause.
Dated and delivered at Meru this 9th day of July 2009.
MARY KASANGO
JUDGE