[2010] KEHC 1884 (KLR)
The court held that although Order 53 of the Civil Procedure Rules does not expressly provide for reinstatement of dismissed judicial review applications, this omission does not tie the court's hands. The court retains inherent jurisdiction under Section 3A of the Civil Procedure Act to address procedural lapses and...
Source-derived case information.
- Citation
- [2010] KEHC 1884 (KLR)
- Parties
- Applicant: Republic (Exparte); Respondent: Rift Valley Province Land Disputes Appeals Committee; Respondent: Daniel Chebii Chesang; Respondent: Senior Resident Magistrate Nakuru; Respondent: Attorney General; Applicant: Naiparakwo Tengema Murwok; Applicant: Tapkigen Leshawo Kipindoi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Appeal 15 of 2009
- Procedural Posture
- Miscellaneous Civil Appeal / Ruling on Application for Reinstatement of Dismissed Judicial Review Application
- Outcome
- application allowed with costs to the respondents
- Legal Topics
- Judicial Review, Reinstatement of Dismissed Suit, Procedural Technicalities, Inherent Jurisdiction, Registered Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic (Exparte)
Applicant
Rift Valley Province Land Disputes Appeals Committee
Respondent
Daniel Chebii Chesang
Respondent
Senior Resident Magistrate Nakuru
Respondent
Attorney General
Respondent
Naiparakwo Tengema Murwok
Applicant
Tapkigen Leshawo Kipindoi
Applicant
Procedural Posture
Miscellaneous Civil Appeal / Ruling on Application for Reinstatement of Dismissed Judicial Review Application
Legal Issues
- 1 Whether the court has jurisdiction to reinstate a dismissed judicial review application in the absence of express provision under Order 53 of the Civil Procedure Rules.
- 2 Whether the applicant's counsel's absence at the time of dismissal was sufficiently explained to warrant reinstatement.
- 3 Whether procedural technicalities should bar substantive justice in judicial review proceedings.
Ratio Decidendi
The court held that although Order 53 of the Civil Procedure Rules does not expressly provide for reinstatement of dismissed judicial review applications, this omission does not tie the court's hands. The court retains inherent jurisdiction under Section 3A of the Civil Procedure Act to address procedural lapses and ensure substantive justice is done. In this case, the applicant's counsel's absence was satisfactorily explained, and the interests of justice required that the application be reinstated. The court therefore allowed the application for reinstatement, subject to costs to the respondents.
Court Disposition
application allowed with costs to the respondents
Orders
- The application for reinstatement of the dismissed judicial review application is allowed.
- The respondents are awarded costs of this application.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Miscellaneous Civil Appeal 15 of 2009
IN THE MATTER OF AN APPLICATION FOR LEAVE TO INSTITUTE JUDICIAL
REVIEW FOR AN ORDER OF CERTIORARI
AND
IN THE MATTER OF REGISTRED LAND ACT CAP 300 LAWS OF KENYA
AND
IN THE MATTER FOR AN APPLICATION BY NAIPARAKWO TENGEMA
MURWOK AND TAPKIGEN LESHAWO KIPINDOI FOR LEAVE TO APPLY FOR
AN ORDER FOR CERTIORARI
REPUBLIC (EXPARTE)……………………………………APPLICANT
VERSUS
RIFT VALLEY PROVINCE LAND DISPUTES
APPEALS COMMITTEE…………………….…..…..1ST RESPONDENT
DANIEL CHEBII CHESANG……………..…….……2ND RESPONDENT
SENIOR RESIDENT MAGISTRATE
NAKURU…..………………………………………….3RD RESPONDENT
ATTEORNEY GENERAL………………...….......……4TH RESPONDENT
AND
NAIPARAKWO TENGEMA MURWOK……...………….1ST SUBJECT
TAPKIGEN LESHAWO KIPINDOI………….…....……..2ND SUBJECT
RULING
This is an application under Order 50 Rule 1 of the Civil Procedure Rules as well as Section 3A of the Civil Procedure Act. It seeks to reinstate the Ex-parte applicant’s Judicial Review application dated 11th March 2009 which was on 11th February 2010 been dismissed for non-attendance. It is based on the ground that that date counsel for the Applicant had just stepped out and gone to High Court No. 2 only to return and find it dismissed.
On behalf of the 1st, 3rd and 4th Respondents, the Attorney General opposes the application on the ground that the same is bad in law as there is no provision for the reinstatement of dismissed Judicial Review proceedings. For the 2nd Respondent, it is argued that there is no proof the counsel was in High Court No. 2 when the application was dismissed.
It is true that there is no provision in Order 53 of the Civil Procedure Rules for the reinstatement of a dismissed Judicial Review application. That, however, does not mean it cannot be done. This is a mere procedural issue. As I understand the law, it does not mean that in the absence of provision covering a particular situation ties the court’s hands. Under its inherent jurisdiction conferred by Section 3A of the Civil Procedure Actthe court is authorized by to ignore procedural technicalities or lapses and do substantive justice to the parties.
In this case I am satisfied that counsel’s absence when the application was dismissed has been explained. Consequently, I allow this application but with costs to the Respondents.
DATED and DELIVERED at Nakuru this 13th day of May 2010.
D. K. MARAGA
JUDGE.