[2011] KEHC 1692 (KLR)
The court found that the Notice of Motion was fatally defective because it was supported by an affidavit filed without leave of the court, contrary to Order 53 rule 4(1) of the Civil Procedure Rules. Furthermore, the absence of a verifying affidavit exhibiting the documents upon which the application was based meant...
Source-derived case information.
- Citation
- [2011] KEHC 1692 (KLR)
- Parties
- Applicant: Republic; Respondent: District Land Dispute Tribunal Kipkaren; Respondent: Sarah K. Kisorio; Applicant: Dorcas J. Kisorio
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 96 of 2003
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application struck out as incompetent with costs
- Legal Topics
- Judicial Review, Certiorari, Tribunal Jurisdiction, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
District Land Dispute Tribunal Kipkaren
Respondent
Sarah K. Kisorio
Respondent
Dorcas J. Kisorio
Applicant
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the Kipkarren Land Disputes Tribunal had jurisdiction to entertain the dispute.
- 2 Whether the Notice of Motion was competent in light of procedural requirements under Order 53 of the Civil Procedure Rules.
- 3 Whether the absence of a verifying affidavit and supporting documents rendered the application fatally defective.
Ratio Decidendi
The court found that the Notice of Motion was fatally defective because it was supported by an affidavit filed without leave of the court, contrary to Order 53 rule 4(1) of the Civil Procedure Rules. Furthermore, the absence of a verifying affidavit exhibiting the documents upon which the application was based meant that the application lacked evidentiary support. The court held that if the verifying affidavit accompanying the application for leave did not carry documentary support, leave ought not to have been granted in the first place. The procedural defects were fundamental and could not be cured, rendering the application incompetent. Consequently, the Notice of Motion was struck out...
Court Disposition
application struck out as incompetent with costs
Orders
- The Notice of Motion is struck out as incompetent.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
MISCELLANEOUS APPLICATION NO. 96 OF 2003
REPUBLIC::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT
VERSUS
THE DISTRICT LAND DISPUTE
TRIBUNAL KIPKAREN::::::::::::::::::::::::::::::::::::::::::::::::::1ST RESPONDENT
SARAH K. KISORIO::::::::::::::::::::::::::::::::::::::::::::::::::::INTERESTED PARTY
DORCAS J. KISORIO:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::EX-PARTE
JUDGMENT
On 27th March, 2003, Tunya J. (now retired) granted Dorcas, J Kisorio (hereafter the applicant) leave to apply for an order of certiorarito remove into this court for the purpose of quashing, the decision of Kipkarren Land Disputes Tribunal (hereinafter the respondent) made on 30th January, 2003 and adopted by the Principal Magistrate’s Court at Kapsabet vide L.D.T. award No. 7/2003 over L.R No. Nandi/Sasora/106.
Pursuant to the said leave, the applicant lodged this Notice of Motion on 17th April, 2003 for the said relief.
The main grounds for the application are that the respondent had no jurisdiction to entertain the dispute; that the respondent was biased in arriving at its decision; and that the applicant stands to suffer irreparable loss and damage if the said decision is not quashed.
The Notice of Motion is supported by an affidavit which was sworn by the applicant on 17th April, 2003 and a statutory statement which was amended with the leave of the court.
The application is opposed by the respondent and Sarah J. Kisorio, the Interested Party. The latter filed a replying affidavit and her counsel filed Grounds of Opposition. Counsel for the respondent opposed the application on matters of law only. The substance of the opposition is that the Notice of Motion is incompetent as it offends the provisions of Order LIII of the Civil Procedure Rules.
The application was canvassed before me on 26th October, 2010 by Mr. Otieno for the applicant Mr. Muiruri Learned Counsel for the respondent and Mr. Chemwok Learned Counsel for the interested party. When counsel for the applicant rose to respond to the submissions on behalf of the respondent and the interested party, he applied for an adjournment to confirm the status of the Chamber Summons pursuant to which leave was granted. When hearing resumed on 31st May, 2011, counsel for the applicant applied for leave to file a verifying affidavit to introduce exhibits upon which the application was based. I declined the leave sought as the Notice of Motion had been fully argued. That decision determined the Notice of Motion. I say so, because in the absence of documents supporting the motion its fate was sealed. If indeed the verifying affidavit accompanying the application for leave carried no documentary support leave ought not to have been granted. The incompetent Chamber Summons for leave sounded the death knell for the Motion. Order 53 rule 4(1) of the Civil Procedure Rules reads as follows:-
“4(1) Copies of the statement accompanying the application for leave shall be served with the notice of motion and copies of any affidavits accompanying the application for leave shall be supplied on demand and no grounds shall, subject as hereafter in this rule provided, be relied upon or any relief sought at the hearing of the motion except the grounds and relief set out in the said statement.”
This notice of motion, as already stated, is supported by an affidavit filed with the motion. The affidavit therefore clearly contravenes the above sub rule as it was filed without the leave of the court. The defect is compounded by the failure to exhibit the documents to be relied upon to the verifying affidavit. The defective verifying affidavit was in any event not filed with this motion. The motion has no basis. It is incompetent and is struck out with costs.
It is so ordered.
DATED AND DELIVERED AT ELDORET
THIS 5TH DAY OF AUGUST, 2011
F. AZANGALALA
JUDGE
Read in the presence of:-
Ms. Otieno for the applicant and
Mr. Chemwok for the Interested Party.
F. AZANGALALA
JUDGE
5TH AUGUST, 2011