[2008] KEHC 1686 (KLR)
The court held that its jurisdiction had not been properly invoked because the application was brought under provisions of the Civil Procedure Rules and the Civil Procedure Act that do not apply to judicial review proceedings, which are governed exclusively by Order 53 of the Civil Procedure Rules and the Law Reform...
Source-derived case information.
- Citation
- [2008] KEHC 1686 (KLR)
- Parties
- Applicant: Union East African Trust Limited; Respondent: Business Premises Rent Tribunal; Interested Party: Bellton Agencies T/A P.M. International
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 393 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion to Set Aside Leave and Stay Order in Judicial Review Proceedings
- Outcome
- application struck out for procedural impropriety
- Legal Topics
- Judicial Review Procedure, Leave to Apply for Judicial Review, Business Premises Rent Tribunal Jurisdiction, Affidavit Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Union East African Trust Limited
Applicant
Business Premises Rent Tribunal
Respondent
Bellton Agencies T/A P.M. International
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion to Set Aside Leave and Stay Order in Judicial Review Proceedings
Legal Issues
- 1 Whether the court's jurisdiction was properly invoked for the orders sought in the application.
- 2 Whether the application could be entertained given the procedural defects in the manner it was brought.
- 3 Whether an affidavit sworn by a non-party can support an application in judicial review proceedings.
Ratio Decidendi
The court held that its jurisdiction had not been properly invoked because the application was brought under provisions of the Civil Procedure Rules and the Civil Procedure Act that do not apply to judicial review proceedings, which are governed exclusively by Order 53 of the Civil Procedure Rules and the Law Reform Act. Furthermore, the affidavit in support of the application was sworn by a person who was not a party to the proceedings, rendering it invalid. As a result, the court declined to consider the merits of the application and struck it out for procedural impropriety, with costs to the applicant.
Court Disposition
application struck out for procedural impropriety
Orders
- The application is struck out.
- The applicant shall bear the costs of the application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Misc. Appli. 393 of 2008
UNION EAST AFRICAN TRUST LIMITED….…………………………APPLICANT
Versus
BUSINESS PREMISES RENT TRIBUNAL….……………………..RESPONDENT
BELLTON AGENCIES T/A P.M. INTERNATIONAL.………INTERESTED PARTY
RULING
The Notice of Motion dated 23rd July 2008 is expressed to be brought pursuant to Order 50 Rule 1 (1) of the Civil Procedure Rules, Section 3 A Civil Procedure Act, Order XB Rule 8 and Section 4 (1) (2) 5, 12 (1) (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Chapter 301 Laws of Kenya. The applicant Union East African Trust Ltd. prays that an order do issue setting aside the leave granted to the ex parte Applicant to institute Judicial Review proceedings acting as a stay of the Business Premises Tribunal’s order dated 6th June 2008 and in the alternative the court do find that the Business Premises Tribunal had jurisdiction to hear the Reference filed as No. 334 of 2008 and that costs be provided for.
The application is based on grounds found in the body of the application and an affidavit sworn by Mohamed Kikuji who describes himself as an applicant. The application was opposed and Simon Warui an employee of Gimco Ltd., which manages the property in LR 209/907 which is at the centre of this controversy in this Judicial Review Application, swore an affidavit in reply. A brief background to this case is that on 2nd July 2008, the ex parte Applicant Union East African Trust Ltd sought leave of the court to commence Judicial Review proceedings and that the leave do operate as stay of the ruling of the Business Premises Rent Tribunal made on 6th June 2008. The court granted leave and the same was to operate as stay for 45 days. It is this order of stay that the Applicant/Interested Party is challenging.
Before I even consider the merits of the application, I have looked at the application as presented before me and I am of the view that this court’s jurisdiction has not been properly invoked for the grant of the orders sought. The substantive motion herein is a Judicial Review application. Judicial Review is a special jurisdiction. The Court of Appeal in interpreting S.8 of the Law Reform Act in the case of KUNSTE HOTEL LTD. V COMMISSIONER OF LANDS CA 234/05said that it is a special jurisdiction to which neither the Government Proceeding Act nor the Civil Procedure Act and the Rules made there under apply. Section 8(1) of the Law Reform Act which provides the substantive law on Judicial Review provides that when exercising Judicial Review jurisdiction the court is neither exercising civil or criminal jurisdiction. The Court of appeal reiterated that fact in R V COMMUNICATION COMMISSION OF KENYA CA 175/00 when it found that Order VI of the Civil Procedure Rules does not apply to Judicial Review. In the instant case, this court has been moved under Order 50 Civil Procedure Rules, Section 3 A Civil Procedure Act and XB Rules 8 and Section 4 of the Business Premises Act. None of the above provisions apply to Judicial Review proceedings. Order 53 Civil Procedure Rules does not provide for setting aside of any order and the Court should have been moved under its inherent jurisdiction under Order 53. The Applicant does not therefore deserve the orders sought without moving the court appropriately. Rules of procedure are put in place to maintain some order and have to be substantially complied with. For the reason that the court has not been properly moved, it will not consider the merits of the present application and the same is for striking out.
This court also has problems with the affidavit filed in support of the application. It is sworn by one Mohamed Kikuji of Box 14403 – 00100 who describes himself as the Applicant. At paragraph 6 he describes himself as a subtenant. However, looking at the Notice of Motion dated 4th July 2008 the parties are the Republic versus The Business Premises Tribunal (the Respondent) ex parte Union East African Ltd. (the Applicant) and Bellton Agencies T/A PM International – the (Interested Party). There is nobody by name of Mohamed who is a party and the affidavit seems to have been sworn by a stranger to these proceedings. No order would be granted to a stranger to proceedings.
For the above reasons and so that this person is not locked out if he makes good his application, the same is struck out with the Applicant bearing the costs.
Dated and delivered this 19th day of September 2008.
R.P.V. WENDOH
JUDGE
Present:
Mr. Madana for Applicant
Mr. Muthui holding brief for Watende for Respondent
Elizabeth: Court Clerk