[2004] KEHC 1644 (KLR)
The court held that while notice to the Deputy Registrar is sufficient in courts outside Nairobi, strict compliance with Order LIII rule 1(3) is mandatory. The applicant failed to attach the required statement of facts, supporting and verifying affidavits to the notice, rendering the application incompetent. The...
Source-derived case information.
- Citation
- [2004] KEHC 1644 (KLR)
- Parties
- Applicant: Republic; Respondent: Soy Land Disputes Tribunal; Respondent: Kiiru Chomba; Respondent: Christine Wambui Mwaura; Respondent: Wamboi Mureithi; Applicant: Peter Gicharu Ngige
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 17 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; application struck out with costs
- Judges
- JW Gacheche
- Legal Topics
- Judicial Review Procedure, Order Liii Compliance, Notice to Registrar, Affidavit Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Soy Land Disputes Tribunal
Respondent
Kiiru Chomba
Respondent
Christine Wambui Mwaura
Respondent
Wamboi Mureithi
Respondent
Peter Gicharu Ngige
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether notice to the Deputy Registrar instead of the Registrar satisfies Order LIII requirements.
- 2 Whether failure to attach statement of facts, supporting and verifying affidavits to the notice renders the application incompetent.
- 3 Whether the court has discretion to allow amendment or extension for non-compliance with Order LIII rule 1(3).
Ratio Decidendi
The court held that while notice to the Deputy Registrar is sufficient in courts outside Nairobi, strict compliance with Order LIII rule 1(3) is mandatory. The applicant failed to attach the required statement of facts, supporting and verifying affidavits to the notice, rendering the application incompetent. The court found no discretion to allow amendment or extension in the absence of good cause shown, and the applicant did not address this issue. Additionally, the affidavit of service did not comply with Order LIII rule 3(3), making service defective. Consequently, the preliminary objection was upheld and the application struck out with costs.
Court Disposition
preliminary objection upheld; application struck out with costs
Orders
- The preliminary objection is upheld.
- The application is struck out for non-compliance with Order LIII rules 1(3) and 3(3).
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
MISC. CIVIL APPLICATION NO. 17 OF 2002
REPUBLIC………………………………………………………………………………………….. APPLICANT
VERSUS
SOY LAND DISPUTES TRIBUNAL……………………………………1ST RESPONDENT
KIIRU CHOMBA ……………………………………………………………………. 2ND RESPONDENT
CHRISTINE WAMBUI MWAURA …………………………………… 3RD RESPONDENT
WAMBOI MUREITHI …………………………………………………….. 4TH RESPONDENT
EX-PARTE PETER GICHARU NGIGE
RULING
Section 2 of the Civil Procedure Act which is referred to as the Interpretation Section of the Act, states that a Registrar, includes a District Registrar and a Deputy Registrar. It would be therefore right in my humble opinion to find that in an application made under order LIII of the Civil Procedure Rules, under which it is a mandatory requirement that notice be issued to the Registrar, where such notice is issued to the Deputy Registrars especially in Courts which are based away from the Central Law Courts in Nairobi, where the only one Registrar of the High Court is based, such a notice is adequate and no objection may be raised in the fact that such notice was issued to the Deputy Registrar in the circumstances.
Having found as I do, it is imperative that I state that the other issues that arise from the preliminary objection dwell on procedures under Order LIII of Civil Procedure Rules, the second one being, whether a notice under Order LIII rule 1 (3) is valid and actionable upon where it is not accompanied by a statement, the supporting and the verifying affidavits.
Order LIII rule 1 (3) of the Civil Procedure Rules stipulates that;
“(3) The applicant shall give notice of the application for leave not later than the preceding day to the r egistrar and shall at the same time lodge with the registrar copies of the statement and affidavits: Provided the court may extend this period or excuse the failure to file the notice of the application for good cause shown.”
The above rule is couched in mandatory terms and it is important that he who seeks to move the court for leave to apply for Judicial Review, complies with the above requirements.
In my understanding, the Registrar is notified beforehand, so as to allow him time to prepare the matter for presentation before the Judge. He can only be prepared adequately, if he knows what is the gist of the intended application for leave, and he can only do so if he is armed with the statement of facts, the supporting and verifying affidavits.
A notice to which the above documents are not attached is incompetent in that it does not comply with the aforementioned requirements and leave cannot in the circumstances be granted.
It must be emphasized at this point that the statement of facts, the supporting affidavit and verifying affidavits which should be attached to the notice are copies of the statement of facts supporting and verifying affidavits which must accompany the application for leave. Mr. Shivachi, pleaded rule 1 (3) of the aforementioned Order and it was his submission that the court has the discretion to grant an applicant leave to remedy the situation and though he did not apply for such leave he relied on Farmers Bus Service and others v The Transport Licensing Appeal Tribunal,(1959)EA 779 in which case, the court ordered that the Notice of Appeal be amended to comply with the mode in which application of this nature are titled which had been considered and ordered by the lower court in its ruling. That order only related to the title to the Notice of Appeal and it would be of little relevance to the application that is now before me. In any event, the Title to this very application is in itself defective, a point on which Mr. Shivachi should have taken a cue when relying on the aforemention decision.
Indeed, I am of the humble opinion there is no provision for amendments at all in the rule that he chose to rely on, as the one provision therein is that court may only “extend the period or excuse the failure to file the notice of the application for good cause shown.” None has been shown here, nor did the applicants even address that issue.
Be that as it may, rule 3 (3) makes specific requirements on the matters to be deponed upon by process servers in affidavits of service of all notices issued under Order LIII. Again, the rule is couched in mandatory terms and any deviation there from renders the service defective and/or improper, the net result of which would be for the court to find that service was not effected as is required.
It is for the above reasons that I find that the application before me is defective in that it fails to comply with the provisions of Order LIII rules 1 (3) and 3 (3), and for those reasons, this preliminary objection is upheld with costs.
Dated and delivered at Eldoret this 11th day of March 2004.
JEANNE GACHECHE
JUDGE
Delivered in the presence of: