[2016] KEELC 79 (KLR)
The court found the application meritorious on the basis that the original court file had been missing since 2015, and the respondents had been unable to enforce a costs order due to the absence of the file. The court determined that it was in the interest of justice to certify the application as urgent and to...
Source-derived case information.
- Citation
- [2016] KEELC 79 (KLR)
- Parties
- Applicant: Republic; Respondent: Meru Central Land District Tribunal; Respondent: Gladys Gatiria Robert; Respondent: Judith Naitore Robert; Respondent: Timothy Kirimi Ntara; Respondent: Philip Muguna Ntara
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 94 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Urgency and Opening of Skeleton File
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Judicial Review Procedure, Costs Award, Missing Court File, Land Tribunal Decisions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Meru Central Land District Tribunal
Respondent
Gladys Gatiria Robert
Respondent
Judith Naitore Robert
Respondent
Timothy Kirimi Ntara
Respondent
Philip Muguna Ntara
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Urgency and Opening of Skeleton File
Legal Issues
- 1 Whether the application should be certified as urgent.
- 2 Whether the court should authorize the opening of a skeleton file for the missing court file.
- 3 Whether costs should be provided for in the application.
Ratio Decidendi
The court found the application meritorious on the basis that the original court file had been missing since 2015, and the respondents had been unable to enforce a costs order due to the absence of the file. The court determined that it was in the interest of justice to certify the application as urgent and to authorize the opening of a skeleton file to facilitate the enforcement of the costs order. The court exercised its inherent powers under the Civil Procedure Act to ensure that justice is not defeated by procedural obstacles such as a missing file. The orders sought were granted to enable the respondents to pursue the recovery of their taxed costs.
Court Disposition
application allowed
Orders
- The application is certified as urgent.
- The court authorizes and orders that a skeleton file be opened in respect of Meru High Court Misc. Application No. 214 of 2005.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ENVIRONMENT AND LAND
MISC. APPLICATION NO 94 OF 2016
IN THE MATTER OF AN APPLICATION FOR LEAVE TO FILE FOR JUDICIAL REVIEW BY ROBERT NTARANGWI, DAVID MURAA FOR ORDERS OF CERTIORARI & PROHIBITION
AND
IN THE MATTER OF MERU CENTRAL DISTRICT LAND TRIBUNAL CASE NO 51 OF 2005
BETWEEN
REPUBLIC …..................................................................................APPLICANT
VERSUS
MERU CENTRAL LAND DISTRICT TRIBUNAL …....1ST RESPONDENT
GLADYS GATIRIA ROBERT..........................................2ND RESPONDENT
JUDITH NAITORE ROBERT...........................................3RD REPONDENT
TIMOTHY KIRIMI NTARA...............................................4TH RESPONDENT
PHILIP MUGUNA NTARA..............................................5TH RESPONDENT
R U L I N G
1. This application is filed under Sections 1A , 1B and 3A of the Civil Procedure Act, and Order 51 Rule 1 of the Civil Procedure Rules.
2. The application seeks orders: -
1. THAT this Honourable Court be pleased to certify this application as urgent.
2. THAT this Honourable Court do authorize and order that a skeleton file be opened in respect of Meru High Court Misc. Application No. 214 of 2005.
3. THAT the cost of this application be provided for.
3. The application is supported by the Supporting Affidavit of GLADYS GITIRIA ROBERT and has the following grounds:-
(a) This Judicial Review matter was filed in the High Court sometime in 2005.
(b) Leave was granted to the Ex-parte Applicants and the substantive application (notice of motion) was filed at the High Court Central Registry on 10th January, 2006.
(c) The 2nd to 5th Respondents filed Notice of Preliminary Objection on 11th January, 2008 objecting to the Ex-parte Applicants Notice of Motion.
(d) William Ouko J as he then was, sustained the objection and dismissed the Ex- Parte Applicants Motion and awarded costs to 2nd to 5th Respondents.
(e) The said costs totalled to Kshs 55,000/= after taxation.
(f) The Ex-parte Applicants have failed to meet these costs to the detriment of the 2nd to 5th Respondents.
(g) The Court file in respect of this matter has been missing since 2015 and despite various visits and letters by the 2nd to 5th Respondents to the Meru High Court Deputy Registrar their efforts have borne no fruits.
(h) In light of the foregoing it is in the interest of justice and fairness that this application be granted as the 2nd to 5th Respondent deserve to be paid their costs.
4. On 07/12/2016, at the exparte stage, Advocate Mutembei ,holding brief for Advocate Rimita for the 2nd to 5th Respondents, urged the Court to allow the application because doing so would facilitate obeisance to the course of justice.
5. I find that the application is meritorious.
6. It is declared urgent and prayers 1 and 2 are granted.
7. Costs shall be in the cause.
8. It is so ordered.
DELIVERED IN OPEN COURT AT MERU THIS 7TH DAY OF NOVEMBER, 2016 IN THE PRESENCE OF:-
C:A Daniel/James
Mutembei h/b Rimita for the Applicant
P.M. NJOROGE
JUDGE