[2007] KEHC 1001 (KLR)
The court found that the Chamber Summons for leave was improperly headed in the name of the Republic instead of the applicant, which is a procedural defect. Based on appellate and High Court authority, the court held that while prerogative orders must be correctly instituted, courts have discretion to allow...
Source-derived case information.
- Citation
- [2007] KEHC 1001 (KLR)
- Parties
- Applicant: Republic; Respondent: Resident Magistrate Milimani Commercial Court; Interested Party: Justus M. Njoka; Interested Party: Daniel Magu Ngaire; Interested Party: Lawrence M. Rutere T/A Giant Auctioneers; Exparte Applicant: John M. Wambugu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 182 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Leave for Judicial Review
- Outcome
- Application allowed; orders sought by the 2nd interested party granted.
- Legal Topics
- Judicial Review Procedure, Prerogative Orders, Pleadings Format, Amendment of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Resident Magistrate Milimani Commercial Court
Respondent
Justus M. Njoka
Interested Party
Daniel Magu Ngaire
Interested Party
Lawrence M. Rutere T/A Giant Auctioneers
Interested Party
John M. Wambugu
Exparte Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Leave for Judicial Review
Legal Issues
- 1 Whether the heading of the Chamber Summons for leave in the name of the Republic instead of the applicant is a fatal defect.
- 2 Whether the court should allow amendment of the documents to comply with the correct form.
- 3 Whether objections to form can be raised at the commencement of hearing.
Ratio Decidendi
The court found that the Chamber Summons for leave was improperly headed in the name of the Republic instead of the applicant, which is a procedural defect. Based on appellate and High Court authority, the court held that while prerogative orders must be correctly instituted, courts have discretion to allow amendment of documents to cure such defects. However, in this instance, the court determined that correct procedures must be maintained at this stage, and therefore allowed the application challenging the leave granted, effectively setting aside the leave due to the procedural impropriety.
Court Disposition
Application allowed; orders sought by the 2nd interested party granted.
Orders
- The leave granted to file Notice of Motion in Judicial Review is set aside.
- The application by the 2nd interested party is allowed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
Misc Civil Appli 182 of 2006
REPUBLIC…………………………………………….......………........................APPLICANT
VERSUS
RESIDENT MAGISTRATE MILIMANI COMMERCIAL COURT..…...........RESPONDENT
JUSTUS M. NJOKA……………………...................………..……1ST INTERESTED PARTY
DANIEL MAGU NGAIRE………….......................................……2ND INTERESTED PARTY
LAWRENCE M. RUTERE T/A GIANT AUCTIONEERS.......…3RD INTERESTED PARTY
JOHN M. WAMBUGU…………….............................................……EXPARTE APPLICANT
RULING
By Notice of Motion dated 21/5/2007 the 2nd interested party has challenged the order issued by this court granted the Exparte applicant leave to file Notice of Motion in Judicial Review under the provisions of Order 53 Civil Procedure Rules. The application is grounded on the fact that the Chamber Summons for leave is headed in the name of Republic instead of the Applicant. This is submitted to be a fatal defect affective the leave granted and the Notice of Motion filed. The applicant has filed a list of authorities:-
1. In the decision of court of Appeal reported in [1957] E.A Page 52 regarding proceedings incorrectly instituted under Law Reform (Misc provisions ordinance 1953 Section 18 (5) (u)) that as prerogative orders are issued in the name of crown, the appeal was wrongly instituted in that it joined Crown as respondent. This was a matter of forum where the appellant first obtained exparte leave to apply for an order before a Judge of High Court ………..His application for leave was correctly instituted. The court proceeded to lay out the forum as used by the appellant therein and said the prerogative orders are issued in the name of the crown at the instance of the applicant directed to the person or persons who are to comply therewith. The crown cannot be both applicant and respondent.
2. Farmers Bus Service & others vs The Transport Licensing Appeal Tribunal Court of Appeal [1959] E.A 779. It was in this case that the court of Appeal after Holding that prerogative orders are issued in the name of the Crown and that Applicants for such orders must be correctly instituted. The court of appeal set out the method of correctly drawn both the Chamber Summons for leave and Notice of Motion. However the court permitted amendment of the documents to comply with the forum.
3. High Court decision in the case of Welamondi vs Chairman Electral Commission of Kenya
] (copy provided) in which the court held “that objections in ……………… may be taken at the commencement of the hearing unless those are predicated on disputed facts or call upon the court exercise of discretion”
In the present case the application was served on 2nd of May and by the date fixed for hearing no opposition was filed.
Upon considering the said decisions of the court and upon hearing the submissions of counsel in absence of counsel for Applicant. I am of the view that at this stage in time the court ought to maintain the correct procedures. I therefore allow the application and grant orders sought.
Dated this 30th July, 2007.
J. N. KHAMINWA
JUDGE
30/7/2007
Khaminwa – Judge
Njue – Clerk
M/s Thungu HB for Nyakiangana
Ruling read in open court.
J. N. KHAMINWA
JUDGE