[2013] KEHC 6979 (KLR)
The court found that leave to commence judicial review proceedings had never been granted to the applicant. Consequently, the applicant could not have properly filed a substantive notice of motion. The absence of leave is a fatal procedural defect that precludes the matter from proceeding further at this stage. The...
Source-derived case information.
- Citation
- [2013] KEHC 6979 (KLR)
- Parties
- Applicant: Rwaikamba & Rwathia Trading Co. Limited; Respondent: Town Clerk, City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 65 of 2010
- Procedural Posture
- Judicial Review / Preliminary; Leave to Commence Proceedings Not Granted
- Outcome
- No substantive determination; file returned to registry for procedural compliance.
- Legal Topics
- Leave to Commence Judicial Review, Procedural Irregularities, Notice of Motion Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rwaikamba & Rwathia Trading Co. Limited
Applicant
Town Clerk, City Council of Nairobi
Respondent
Procedural Posture
Judicial Review / Preliminary; Leave to Commence Proceedings Not Granted
Legal Issues
- 1 Whether leave to commence judicial review proceedings had been granted.
- 2 Whether the absence of a notice of motion invalidates the proceedings.
Ratio Decidendi
The court found that leave to commence judicial review proceedings had never been granted to the applicant. Consequently, the applicant could not have properly filed a substantive notice of motion. The absence of leave is a fatal procedural defect that precludes the matter from proceeding further at this stage. The court therefore returned the file to the registry for the advocates to take the necessary procedural steps, as the foundational requirement for judicial review—grant of leave—had not been satisfied.
Court Disposition
No substantive determination; file returned to registry for procedural compliance.
Orders
- The file is returned to the registry for the advocates to take the required procedural steps.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JR ELC CASE NO. 65 OF 2010
RWAIKAMBA & RWATHIA
TRADING CO. LIMITED ...............................................APPLICANT
VERSUS
TOWN CLERK
CITY COUNCIL OF NAIROBI....................................RESPONDENT
RULING
All along I have proceeded on the understanding that leave was granted to the ex-parte applicant to commence judicial review proceedings. Earlier on I had taken this file into my custody with a view to writing a judgement but it came to my attention that there was no notice of motion in the court file. I returned the file to the registry and directed the advocates to avail all the missing documents in the court file. On 10th April, 2013 Ms Otaba holding brief for Mr. Wahome for the applicant and Ms Kerubo for the respondent indicated to me that they had availed all the documents. I have once again noted that there is no notice of motion. After perusing the court record, it has emerged that leave to commence these proceedings has never been granted. The applicant could not have therefore filed the substantive notice of motion. In the circumstances, I once again return this file to the registry so that the advocates can do what is required of them.
Dated, signed and delivered at Nairobi This 28th day of May , 2013
W. K. KORIR,
JUDGE