[2014] KEHC 3240 (KLR)
The court held that although the main motion was not served within the 21 days directed by the court, it was nonetheless filed within the required period. The delay in service was considered a procedural technicality rather than a substantive error, especially as no prejudice was demonstrated by the interested...
Source-derived case information.
- Citation
- [2014] KEHC 3240 (KLR)
- Parties
- Applicant: Republic; Respondent: Principal Kadhi Mombasa; Applicant: Khadija Abdulrehman Karama; Interested Party: Rumi Salim Palsha
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application 46 of 2013
- Procedural Posture
- Judicial Review Application / Ruling on Motion to Set Aside Leave and Strike Out Main Motion
- Outcome
- application dismissed
- Judges
- JV Juma
- Legal Topics
- Judicial Review Procedure, Service of Process, Mohamedan Marriage and Divorce, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Principal Kadhi Mombasa
Respondent
Khadija Abdulrehman Karama
Applicant
Rumi Salim Palsha
Interested Party
Procedural Posture
Judicial Review Application / Ruling on Motion to Set Aside Leave and Strike Out Main Motion
Legal Issues
- 1 Whether failure to serve the main motion within 21 days after leave is a ground for setting aside the stay and striking out the substantive motion.
- 2 Whether the delay in service occasioned prejudice to any party.
- 3 Whether the delay in service amounts to a procedural technicality or a substantive error.
Ratio Decidendi
The court held that although the main motion was not served within the 21 days directed by the court, it was nonetheless filed within the required period. The delay in service was considered a procedural technicality rather than a substantive error, especially as no prejudice was demonstrated by the interested party. The court emphasized that justice should not be defeated by technicalities, in line with Article 159(2)(d) of the Constitution. Since the delay was neither inordinate nor deliberate, and the interested party was not a party to the proceedings at the time the orders were made, there was no basis to strike out the motion or set aside the orders. The application was therefore...
Court Disposition
application dismissed
Orders
- The application to set aside leave and strike out the main motion is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
JR MISC. APPLICATION NO. 46 OF 2013
IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW ORDERS UNDER ORDER 53 OF THE CIVIL PROCEDURE RULES 2010
AND
IN THE MATTER OF: THE LAW REFORM ACT CAP 26 LAWS OF KENYA
AND
IN THE MATTER OF: MOHAMEDAN MARRIAGE AND DIVORCE REGISTRATON ACT CAP 155 LAWS OF KENYA
AND
IN THEMATTER OF: KADHI’S COURT AT MOMBASA CIVIL SUIT NO. 27 OF 2013
AND
IN THE MATTER OF: AN APPLICATION BY KHADIJA ABDULREHMAN KARAMA FOR LEAVE TO APPLY FOR ORDERS OF JUDICIAL REVIEW AGAINST THE ORDER AND DECISION OF THE PRINCIPAL KADHI CONFIRMING DIVORCE BETWEEN RUMI SALIM PALSHA AND KHADIJA ABDULREHAMAN KARAMA AND ISSUING DIVORCE CERTIFICATE
REPUBLIC……………………………………….……………. APPLICANT
VERSUS
PRINCIPAL KADHI MOMBASA…………………………RESPONDENT
EX-PARTE: KHADIJA ABDULREHMAN KARAMA
RULING
By way of this Notice of Motion dated 25th October, 2013 the Interested Party RUMI SALIM PALSHA sought inter alia the following orders:
“(b) THAT leave granted to the Ex-parte applicant herein by this Honourable Court on 17th July, 2013 for her to apply for orders of certiorari and prohibition be set aside.
(c) THAT the order of this court staying the decision and order made on 19th February, 2013by the Principal Kadhi in Mombasa Kadhi’s Court Civil Sit No. 27 of 2013 be accordingly discharged.
(d) THAT the main petition [motion] said to have filed (sic) by the Ex parte applicant on 26th July, 2013 be struck out with costs.
(e) THAT the costs of this application be provided for.”
The genesis of this motion was a chamber summons application dated 17th July, 2013 seeking leave to commence judicial review proceedings against the Chief Kadhi, Mombasa. The order granting leave was made on 17th July, 2013 and the court in addition gave the following directions
“Main petition to be filed and served within 21 days of today’s date ………………….”
The main motion was filed on 26th July, 2013 which was nine (9) days after leave had been granted. However service was not effected on the Principal Kadhi until 6th August, 2013. This is as per the affidavit of service sworn by one ESTONE AKUMONYO on 5th November, 2013. Therefore though the motion was filed within the 21 days allowed by the court, service was not effected until way beyond the 21 days.
This application was disposed of by way of written submissions. Counsel did appear in court on 28th April, 2014 in order to highlight said submissions. The question here is whether the failure to serve the main motion within the 21 days was a ground for setting aside the stay and for striking out the substantive motion. It has been stated severally by legal minds far greater than mine that striking out is a draconian measure which should be reserved for only the most hopeless of cases. Where the possibility to inject life into a suit exists then striking out ought not be an option. The motion was duly filed as required within the 21 days. Had this not been done then the situation would have been different since if the motion was filed after the expiry of 21 days then it would have been deemed to be improperly on record. As it is I find that the motion filed on 26th July, 2013 is properly filed and on record.
The court is guided by Article 159(2) (d) of the Constitution which mandates courts to administer justice without undue regard to technicalities. In my view, failure to effect service within a specified time frame amounts to a procedural technicality. It is not in my view a gross and substantive error. I also take into account the fact that this delay in service has not occasioned prejudice to any party. The interested party has not demonstrated precisely how the late service has prejudiced him. It must be remembered that on 17th July, 2013 when the orders in question were been made the interested party was not a party to these proceedings. The delay of service in my view has not been shown to be inordinate or deliberate and therefore ought not lead to the striking out of a motion which is properly on record. For the above reasons I dismiss this present application. Costs in the cause.
Dated and delivered in Mombasa this 15th day of August, 2014.
M. ODERO
JUDGE
In the presence of:
Mr. Njenga h/b for Asige for Respondent
Ms. Aruna h/b Mr. Maoso for Aplicant
Court Clerk Mutisya