[2009] KEHC 949 (KLR)
The court found that the applicant failed to comply with the mandatory requirements of Order 53 Rule 1(2) of the Civil Procedure Rules, which stipulate that all evidential facts supporting a judicial review application must be contained in the verifying affidavit and not in the statement. In this case, the applicant...
Source-derived case information.
- Citation
- [2009] KEHC 949 (KLR)
- Parties
- Applicant: Peter Njenga Mwangi t/a Njenga Mwangi & Co. Advocates; Respondent: Town Clerk, City Council of Nairobi; Respondent: City Treasurer, City Council of Nairobi; Respondent: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 315 of 2005
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application struck out
- Judges
- RPV Wendoh
- Legal Topics
- Judicial Review, Order 53 Procedure, Mandamus, Verifying Affidavit Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Njenga Mwangi t/a Njenga Mwangi & Co. Advocates
Applicant
Town Clerk, City Council of Nairobi
Respondent
City Treasurer, City Council of Nairobi
Respondent
City Council of Nairobi
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the applicant's Notice of Motion is supported by admissible evidence as required by Order 53 Rule 1(2) of the Civil Procedure Rules.
- 2 Whether facts supporting a judicial review application must be contained in the verifying affidavit rather than the statement.
- 3 Whether the application for mandamus is competent in the absence of evidential support in the affidavit.
Ratio Decidendi
The court found that the applicant failed to comply with the mandatory requirements of Order 53 Rule 1(2) of the Civil Procedure Rules, which stipulate that all evidential facts supporting a judicial review application must be contained in the verifying affidavit and not in the statement. In this case, the applicant placed all material facts and annexures in the statement rather than the affidavit, rendering the application unsupported by admissible evidence. The Court of Appeal authority in Silvano Onema Owaki v Commissioner General, K.R.A. confirmed this procedural requirement. Consequently, the Notice of Motion was found to be incompetent and was struck out, with costs awarded against...
Court Disposition
application struck out
Orders
- The Notice of Motion is struck out as incompetent.
- The applicant shall bear the costs of the application.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT NAIROBI ( MILIMANI LAW COURTS
MISC CIVIL APPLI 315 OF 2005
IN THE MAATER OF AN APPLCIATION BY PETER NJENGA MWANGI T/A NJENGA MWANGI & CO. ADVOCATES (THE APPLICANT) FOR LEAVE TO APPLY FOR AN ORDER OF MANDAMUS?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" /
AND
IN THE MATTER OF H.C.C.C. MISCELANEOUS APPLICATION NO.1818 OF 2002
NJENGA MWANGI & CO. ADVOCATES
VERSUS
THE CITY COUNCIL OF ?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" /NAIROBI
PETER NJENGA MWANGI
T/A NJENGA MWANGI & CO. ADVOCATES .............................................. APPLICANT
AND
TOWN CLERK, CITY COUNCIL OF NAIROBI
CITY TREASURER, CITY COUNCIL OF NAIROBI
CITY COUNCIL OF NAIROBI ..............................................................RESPONDENTS
JUDGMENT
Peter Njenga who trades as Peter Njenga Mwangi Advocates filed the Notice of Motion dated 20/4/05 seeking an order of mandamus to compel the Town Clerk, City Council of Nairobi. CityTreasurer, City Council of Nairobi and the City Council of Nairobi to pay in Kshs.1,33,399/= plus interest 24% p.a. from 3rd March 2003 till payment in full and that if they default they should be committed to civil jail for a period of not more than 6 months and that the Respondent meet the costs of this application.The application premised on the affidavit of the Applicant dated 22. 6.04 and a statement dated 13. 12. 04.
Though the Respondent has been aware of this matter they have never filed any reply.Counsel who had been appearing for the Respondent did not attend the court for the hearing of the Notice of Motion.I have considered the affidavit in support of the application and I find no evidence contained therein to support the Notice of Motion.Order 53 Rule 1 (2) requires that the facts be contained in the verifying affidavit.Instead the Applicant has placed all the facts in the statement.In accordance with Order 53 Rule 1 (2) Civil Procedure Rule the statement should only contain the names of the Applicant, the relief sought and the grounds upon which the relief is sought.In this case the annextures are found in the statement which is irregular.The Court of Appeal confirmed this position in the case of SILVANO ONEMA OWAKI V COMMISSIONER GENERAL, K.R.A. CA 45/00.
The court said
“We would observe that it is the verifying affidavit not the statement to be verified, which is of evidential value in an application for Judicial Review.That appears to be the meaning of rule 1 (2) of Order LIII.This position is confirmed by the following passage from the Supreme Court practice 1976 Vol. 1 at 53/1/07:
“The application for leave ‘By a statement’ The facts relied on should be in the affidavit (see R.V Wandsworth JJ ex parte Read 1942 1 KB. 281).The statement should contain nothing more than the name and the description of the Applicant, the relief sought, the grounds on which it is sought.It is not correct to lodge a statement of all the facts verified by an affidavit.”
The Applicant has placed all the facts in the statement but not the affidavit as required by Order 53 Rule 1 (2).In the result there is no evidence to support the Notice of Motion and the same is incompetent and is hereby struck out with the Applicant bearing the costs.
Dated and delivered this 22nd day of September 2009.
R.P.V. WENDOH
JUDGE
Present
Mr. Ngaira for Applicant
No appearance for Respondents
Court clerk - Muturi