[2012] KEHC 2713 (KLR)
The court held that, although the Notice of Motion appeared on its face to have been filed outside the 21-day period required by Order 53 Rule 3(1) of the Civil Procedure Rules, the computation of time must exclude the period between 21st December and 6th January as provided by Order 49 rule 3A. Applying this...
Source-derived case information.
- Citation
- [2012] KEHC 2713 (KLR)
- Parties
- Applicant: Johnson Nduya Muthama; Respondent: The Minister for Roads and Public Works; Respondent: The Attorney General; Interested Party: Coastal Kenya Enterprises Ltd.
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 273 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- GMA Dulu
- Legal Topics
- Judicial Review Timelines, Computation of Time, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson Nduya Muthama
Applicant
The Minister for Roads and Public Works
Respondent
The Attorney General
Respondent
Coastal Kenya Enterprises Ltd.
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Notice of Motion for judicial review was filed within the statutory 21-day period after leave was granted.
- 2 Whether the computation of time should exclude the period between 21st December and 6th January as per Order 49 rule 3A of the Civil Procedure Rules.
- 3 Whether the proceedings are unprocedural and an abuse of court process.
Ratio Decidendi
The court held that, although the Notice of Motion appeared on its face to have been filed outside the 21-day period required by Order 53 Rule 3(1) of the Civil Procedure Rules, the computation of time must exclude the period between 21st December and 6th January as provided by Order 49 rule 3A. Applying this exclusion, the Notice of Motion was filed within the statutory period. The preliminary objection was therefore dismissed as unmerited, and the proceedings were found to be properly before the court.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed as unmerited.
- Costs in the cause.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MACHAKOS
Miscellaneous Application 273 of 2006
IN THE MATTER OF AN APPLICATION BY JOHNSON NDUYA MUTHAMA FOR LEAVE TO APPLY FOR AN ORDER OF PROHIBITION
BETWEEN
REPUBLIC
VERSUS
1. THE MINISTER FOR ROADS AND PUBLIC WORKS
2. THE ATTORNEY GENERAL ……………...……..………………………..... RESPONDENTS
AND
COASTAL KENYA ENTERPRISES LTD. ……..……………………..…. INTERESTED PARTY
JOHNSON NDUYA MUTHAMA …………………………………..… EX-PARTE APPLICANT
R U L I N G
Before me is a Notice of Preliminary Objection to the Notice of Motion for judicial review of the applicant, filed by the Attorney General on behalf of the respondent. It was dated 18th July 2011. The objections are in the following terms:-
1. The Notice of Motion commencing the proceedings herein is not properly on record.
2. The Notice of Motion commencing the proceedings offends the provisions of Order 53 of the Civil Procedure Rules.
3. The entire proceedings are unprocedural.
4. In the circumstances, the entire proceedings are an abuse of the court process and the 1st and 2nd respondents shall seek that the same be struck out.
When the Preliminary Objection came up for hearing, Ms Abdul, for the 1st and 2nd respondents emphasized that Order 53 of the Civil Procedure Rules required that the Notice of Motion in judicial review proceedings should be filed within 21 days of the date leave was granted. Leave was granted on 18/12/2006. The Notice of Motion was filed on 15/1/2007. Counsel argued that the Notice of Motion was outside the 21 days period allowed by law.
Mr Mutia, for the ex-parte applicant submitted that Order 49 rule 3 (a) of the then existing Civil Procedure Rules, provided that between 21st December and 6th January, time did not run. Therefore, the Notice of Motion herein was filed within 21 days.
Indeed, Order 53 Rule 3 (1) of the Civil Procedure Rules provides that the Notice of Motion should be filed within 21 days from the date leave to file judicial review proceedings is granted. The words in the rule are mandatory. Therefore, there can be no extension of time.
There is no dispute that leave was granted on 18/12/2006 and that the Notice of Motion was filed on 15/1/2007. On the face of it, this appears to be more than 21 days. However, Order 49 rule 3A of the Civil Procedure excludes the days between 21st December and 6th of January from computation of time. It provides:-
3A. Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the sixth day of January in the year next following both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing any pleading or the doing of any other act, provided that this rule shall not apply to any application in respect of a temporary injunction.
With the above provisions of the Civil Procedure Rules in mind, I am of the view that the Notice of Motion herein was filed within the 21 days allowed by law. This is because of the exclusion from computation of time, the days between 21st December and 6th January, inclusive.
Consequently, the objection is dismissed. It is unmerited. I find that the Notice of Motion herein was filed within the time provided by law. Costs in the cause.
Dated and delivered at Machakos this 3rdday of July 2012.
George Dulu
Judge
In presence of:-
Court clerk – Nyalo
N/A for the parties