Wanjiru v Kiambu County Goverment & another [2024] KEELC 6419 (KLR)
- Citation
- [2024] KEELC 6419 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- Environment and Land Court
- Panel
- JG Kemei
- Case number
- Environment & Land Petition E007 of 2024
- Language
- English
More details
- Court
- Environment and Land Court
- Panel
- JG Kemei
- Case number
- Environment & Land Petition E007 of 2024
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant's Notice of Motion was not accompanied by a supporting affidavit, which is a mandatory requirement under Order 51 rule 4 of the Civil Procedure Rules. The absence of a supporting affidavit rendered the application incompetent, as it lacked the evidentiary basis required for the court to consider the reliefs sought. The court relied on established precedent that such a defect is not a mere technicality but a substantive flaw that cannot be cured. Consequently, the application was struck out for want of a supporting affidavit, and no orders as to costs were made.
Court disposition
application struck out for want of supporting affidavit
Orders
- The Notice of Motion application dated 19/4/2024 is struck out for want of a supporting affidavit.
- No orders as to costs.
02
Material facts
Parties
Stephen Mbugua Wanjiru
Applicant Counsel: Ms. Kiama HB MagetoKiambu County Goverment
RespondentCounty Government of Kiambu
Respondent03
Procedural history
Posture
Constitutional Petition / Ruling on Preliminary Application
04
Questions and positions
Legal issues
- 01
Whether the Notice of Motion application is competent in the absence of a supporting affidavit.
- 02
Whether the court should grant conservatory orders suspending the Kiambu County Valuation and Rating Act, 2016.
- 03
Whether the Respondents should be compelled to provide information on public participation regarding the impugned legislation.
Party arguments
- Applicant
- The applicant sought conservatory orders suspending the commencement and effect of the Kiambu County Valuation and Rating Bill, No. 6 of 2016, and an order compelling the Respondents to provide information on public participation. The application was filed under certificate of urgency and invoked various constitutional provisions, arguing that the impugned Act contravened fundamental rights and lacked adequate public participation.
- Respondent
- The Respondents were absent and did not file any arguments or responses to the application at this stage.
05
Court’s reasoning
Legal principles
- 01
Order 51 rule 4 of the Civil Procedure Rules
Every Notice of Motion must be accompanied by a supporting affidavit if it is grounded on evidence.
- 02
University of Nairobi Vs. George Mabele ELRC Appeal No 22 of 2020 [2021] eKLR
An application without a supporting affidavit is materially defective and must be struck out.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant's Notice of Motion was not accompanied by a supporting affidavit, which is a mandatory requirement under Order 51 rule 4 of the Civil Procedure Rules. The absence of a supporting affidavit rendered the application incompetent, as it lacked the evidentiary basis required for the court to consider the reliefs sought. The court relied on established precedent that such a defect is not a mere technicality but a substantive flaw that cannot be cured. Consequently, the application was struck out for want of a supporting affidavit, and no orders as to costs were made.
Obiter and limits
- The court noted that the requirement for a supporting affidavit is not a mere technicality but a substantive rule that ensures applications are properly grounded in evidence.
- The absence of the Respondents did not affect the determination of the application, as the defect was apparent on the face of the record.
Court disposition
application struck out for want of supporting affidavit
- The Notice of Motion application dated 19/4/2024 is struck out for want of a supporting affidavit.
- No orders as to costs.
Source and reliance status
Environment and Land Court
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Judgment reading view
Judgment text
The complete available source text.
Environment and Land Court
Judgment
Wanjiru v Kiambu County Goverment & another (Environment & Land Petition E007 of 2024) [2024] KEELC 6419 (KLR) (30 September 2024) (Ruling)
Neutral citation: [2024] KEELC 6419 (KLR)
Republic of Kenya
In the Environment and Land Court at Thika
Environment & Land Petition E007 of 2024
JG Kemei, J
September 30, 2024
IN THE MATTER OF ARTICLE 185 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ARTICLES 1(1) 2(1) (2) (4) 2(1) 22(3) d, 23, 27,28, 30, 31, 35, 40, 47, 48, 50, 67, 68, 73, 258, 259 AND THE FOURTH SCHEDULE OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: ALELGED CONTRAVENTION OF FUNDAMENTAL RIGHTS & FREEDOMS UNDER ARTICLES 22(3) e, 23, 27, 28, 40, 47, 48, 50, 67, 68, 73 AND THE FOURTH SCHEDULE OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF: CHAPTER 4 OF THE CONSTITUTION OF KENYA 2010 AND SUPERVISORY JURISDICTION UNDER SECTION 13(7) (b) AND 19 OF THE ENVIRONMENT AND LAND COURT ACT NO. 19 OF 2011 AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOM OF THE INDIVIDUAL RULES
Between
Stephen Mbugua Wanjiru
Petitioner
and
Kiambu County Goverment
1st Respondent
County Government of Kiambu
2nd Respondent
Ruling
1. The Petitioner Stephen Wanjiru Mbugua in his Notice of Motion Application dated 19/4/2024 invokes Articles 22(1), 23, 3 (b), (c) & (d), 159, 162, 165 of the Constitution of Kenya and urges the Court to grant Orders THAT;a.Spentb.Spentc.That a conservatory order be and is hereby issued suspending the commencement, levying, obligations operationalization and effecting the contents of the Kiambu County Valuation and Rating Bill, No. 6 of 2016 pending the hearing and determination of the Petition.d.That a temporary conservatory order be issued prohibiting the Respondents either by themselves, their agents and / or any other person (s) whatsoever from acting and/or giving effect to The Kiambu County Valuation and Rating Act 2016. e.That the Honourable Court be pleased to issue an order directing the Respondents to avail to the Petitioner and/or to Court all the information on public participations including but not limited to the memoranda, mode, area of coverage, avenues, methods, and any other document in its possession that was submitted, used and ways of Public Participation which the County Government of Kiambu the 2nd Respondent employed on this bill.f.That any other or/and further orders which this Honourable Court may deem fit to grant for justice to the people of Kiambu County to be attained.g.Cost be provided for.
2. Before delving into the merits of the Application I note that the Petitioner filed the instant Motion alongside his Petition dated 19/4/2024. The Petition is supported by an Affidavit of even date. However, the record before me shows that the instant Notice of Motion Application filed under Certificate of Urgency is not accompanied by a Supporting Affidavit.
3. Order 51 rule 4 of the Civil Procedure Rules outlines the contents of a Motion to be filed in Court as follows;“4. Contents of notice [Order 51, rule 4. ]Every Notice of Motion shall state in general terms the grounds of the Application, and where any motion is grounded on evidence by Affidavit, a copy of any Affidavit intended to be used shall be served.”
4. In the case of University of Nairobi Vs. George Mabele ELRC Appeal No 22 of 2020 [2021] eKLR the Court held;“That an Application without a Supporting Affidavit lacks in a material way. It is filed against the rules of the Court. It is not a mere technicality that can be cured in any manner by the Court and must be struck of for want of Supporting Affidavit”.
5. The Application is incompetent for want of a Supporting Affidavit. It is hereby struck out with no orders as to costs.
6. Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 30TH DAY OF SEPTEMBER, 2024 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered online in the presence of;Ms. Kiama HB Mageto for Petitioner1st and 2nd Respondents – AbsentCourt Assistants – Phyllis
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