[2007] KEHC 1169 (KLR)
The court held that the statutory ouster of jurisdiction under section 8(5) of the Law Reform Act applies only to final orders made on merit in judicial review proceedings. Default and ex-parte orders, such as the dismissal order in question, are not contemplated by these provisions. Therefore, the court retains...
Source-derived case information.
- Citation
- [2007] KEHC 1169 (KLR)
- Parties
- Applicant: Republic; Respondent: Permanent Secretary, Ministry of Housing; Respondent: Director of Housing, Ministry of Housing; Applicant: Fountain Enterprises
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 157 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection to Application to Set Aside Dismissal Order
- Outcome
- preliminary objection dismissed
- Legal Topics
- Judicial Review, Setting Aside Orders, Default Judgments, Jurisdictional Ouster
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Permanent Secretary, Ministry of Housing
Respondent
Director of Housing, Ministry of Housing
Respondent
Fountain Enterprises
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection to Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the court has jurisdiction to entertain an application to set aside a dismissal order in judicial review proceedings in light of section 8(5) of the Law Reform Act.
- 2 Whether orders made in default in judicial review proceedings are amenable to review or setting aside.
Ratio Decidendi
The court held that the statutory ouster of jurisdiction under section 8(5) of the Law Reform Act applies only to final orders made on merit in judicial review proceedings. Default and ex-parte orders, such as the dismissal order in question, are not contemplated by these provisions. Therefore, the court retains inherent jurisdiction to entertain an application to set aside a dismissal order made in default. The preliminary objection raised by the respondents was dismissed, and the applicant was granted liberty to prosecute the application to set aside the dismissal order.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the respondents in any event.
- The applicant is at liberty to prosecute the application to set aside the dismissal order.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Civil Appli 157 of 2006
IN THE MATTER OF AN APPLICATION FOR ORDERS OF JUDICIAL REVIEW BY WAY OF CERTIORARI AND PROHIBITION
BETWEEN
REPUBLIC ............................................................................................... APPLICANT
AND
THE PERMANENT SECRETARY
THE DIRECTOR OF HOUSING, MINISTRY OF HOUSING.........RESPONDENTS
EX-PARTE........................................................................FOUNTAIN ENTERPRISES
RULING
The facts of this aspect of the matter is that the ex-parte applicant filed a Notice of Motion dated 30th March 2006 seeking judicial review orders. The Motion was opposed by the respondents. A hearing was set down for 27th October 2006 but on this date the applicants’ Counsel did not attend court. Consequently the Notice of Motion was dismissed by the Court.
On 30th October, 2006, about 3 days after the dismissal the applicant filed an application to set aside the dismissal order.
The respondents have raised a preliminary point of law in objection to the Motion to wit:-
1) The Honourable Court has no jurisdiction to entertain the Notice of Motion by reason of the statutory ouster of jurisdiction imposed by section 8(5) of the Law Reform Act (Cap 26) and
2) An order issued by the honourable Court pursuant to the jurisdiction conferred upon it by virtue of Sections 8 and 9 of the Law reform Act (Cap 26) is not amenable to review.
The respondents contend that the Court has no jurisdiction to entertain the Motion in the view of the provisions of section 8(3) and 8(5) of the Law Reform act.
I have considered the filed written submission including the authorities cited by the parties.
The nature of the order granted on 27th October, 2006 by this court is in the nature of a default order and was only final before any successful challenge by the party in default. As per holdings in PAUL KIKEMOI v THE CAPITAL MARKETS AUTHORITY HC Misc 1523 of 2003 (unreported), a default order can be set aside upon good cause being shown by the defaulting party.
On the other hand S 8(3) and (5) of the Law Reform Act, only applies to final orders made on merit and default and ex-parte orders are not contemplated or embraced by the provisions. The challenge to final orders if any is by way of an appeal under the Law Reform Act. As a result this Court’s inherent jurisdiction can successfully be invoked by a party.
For this reason the preliminary objection is dismissed with costs to the respondents in any event. The applicant is now at liberty to prosecute the application to set aside.
DATED and delivered at Nairobi this 14th day of December, 2007.
J G NYAMU
JUDGE