[1998] KEHC 133 (KLR)
The court held that third parties who were not parties to the consent order lack the legal standing to seek its review. Additionally, the application for review failed to comply with the mandatory procedural requirements of stating the grounds in the notice of motion as required by Order 50 Rule 3 of the Civil...
Source-derived case information.
- Citation
- [1998] KEHC 133 (KLR)
- Parties
- Applicant: Seraphino Njoka Ndungi; Respondent: Manunga Ngochi; Respondent: Timotheo Makenge; Respondent: District Commissioner, Embu District
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 230 of 1985
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Application for Review
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Court Orders, Locus Standi, Consent Orders, Land Adjudication Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Seraphino Njoka Ndungi
Applicant
Manunga Ngochi
Respondent
Timotheo Makenge
Respondent
District Commissioner, Embu District
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Application for Review
Legal Issues
- 1 Do third parties who were not party to a consent order have locus standi to seek its review.
- 2 Did the application for review comply with the mandatory procedural requirements under the Civil Procedure Rules.
Ratio Decidendi
The court held that third parties who were not parties to the consent order lack the legal standing to seek its review. Additionally, the application for review failed to comply with the mandatory procedural requirements of stating the grounds in the notice of motion as required by Order 50 Rule 3 of the Civil Procedure Rules. The combination of lack of locus standi and procedural non-compliance rendered the application incompetent and fatally defective. The preliminary objection was therefore upheld, and the application dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The preliminary objection is upheld.
- The application for review is dismissed with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MISC. APPLICATION NO. 230 OF 1985
SERAPHINO NJOKA..................................................................PLAINTIFF
versus
MANUNGA NGOCHI
TIMOTHEO MAKENGE..........................................................DEFENDANTS
R U L I N G
On 12th March, 1992 Couldrey J. and Mwera J. recorded a consent order to the effect that the applicants application for an order of mandamus was allowed and the District Commissioner ordered to hear the matter under the Land Adjudication Act Cap. 284 Laws of Kenya.
As at the time of recording the consent order Seraphino Njoka Ndungi was and still is named the applicant while the respondents were and still are Manunga Ngochi, Timotheo Makenge and the District Commissioner, Embu District.
There is now before us an application for review by way of Notice of Motion under Order 44 rule 1 of the Civil Procedure Rules brought by 19 (nineteen) people named and described as Third Parties. They seek a review of the order recorded by consent on 12th March, 1992 aforesaid.
The learned counsel for the applicant has raised a preliminary objection in law, the notice of which was served upon the Third parties to the effect that the Third Parties having not been party to the consent order cannot seek a review of the said consent order. Further, no third party proceedings were taken out before this application.
On the other hand, the learned counsel for the Third Parties has submitted that while conceding that the third parties were not parties to the consent order, they have been affected by the said order.
We have given serious consideration to the matters raised by counsel. We are inclined to agree that the Third parties lack the locus standi to seek a review of an order made by the court at the time they were not parties.
There is a further more serious omission we have noted in the application. The notice of motion did not comply with the mandatory requirements of Order 50 Rule 3 of the Civil Procedure Rules according to which every notice of motion must state in general terms the grounds of the application.
It should be noted that Order 44 of the Civil Procedure Rules under which the present application was brought does not provide for the mode or procedure of making an application for review hence the application of Order 50 aforesaid.
In C. A. NO. 211 of 1996 National Bank of Kenya Limited -v- Ndungu Njau the learned Judges of appeal said:
“On an application for review, it is particularly necessary that the application should disclose in the body of the notice of motion the ground or grounds on which the review is being sought................this in our view was a fatal omission.”
With respect, we agree with the learned judges in that decision which is also binding on us.
In view of the foregoing we find that the preliminary objection succeeds and that the application before us is misplaced and incompetent. It is hereby dismissed with costs.
Dated and delivered at Nairobi this 18th day of March, 1998.
A. MBOGHOLI MSAGHA J. M. KHAMONI
JUDGE JUDGE