[2018] KEHC 1064 (KLR)
The court found that the applicant failed to set out the proper substantive reliefs in the Notice of Motion, despite being granted leave and directed to file a substantive motion. The Notice of Motion only sought leave, which had already been granted, and did not seek the substantive orders of certiorari and...
Source-derived case information.
- Citation
- [2018] KEHC 1064 (KLR)
- Parties
- Applicant: Wilson Kipkoti; Respondent: Ethics and Anti Corruption Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Anti-Corruption and Economic Crimes Case 6 of 2018
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application dismissed
- Legal Topics
- Judicial Review, Certiorari, Prohibition Orders, Pleadings, Procedural Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Kipkoti
Applicant
Ethics and Anti Corruption Commission
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the applicant properly sought substantive orders of certiorari and prohibition in the Notice of Motion.
- 2 Whether the court can grant reliefs not properly pleaded in the Notice of Motion.
Ratio Decidendi
The court found that the applicant failed to set out the proper substantive reliefs in the Notice of Motion, despite being granted leave and directed to file a substantive motion. The Notice of Motion only sought leave, which had already been granted, and did not seek the substantive orders of certiorari and prohibition. The court held that it could not deliberate on or grant reliefs that were not properly pleaded in the Notice of Motion, as parties are bound by their pleadings. Consequently, the application was dismissed for want of proper substantive prayers.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 25th September 2018 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ANTI-CORRUPTION AND ECONOMIC CRIMES DIVISION
ACEC MISCELLANEOUS NO. 6 OF 2018
IN THE MATTER OF: AN APPLICATION BY WILSON KIPKOTI FOR
LEAVE TO APPLY FOR ORDERS OF CERTIORARI & PROHIBITION
AND
IN THE MATTER OF: ETHICS AND ANTI CORRUPTION COMMISSION
WILSON KIPKOTI...........................................................................APPLICANT
VERSUS
ETHICS & ANTI CORRUPTION COMMISSION...................RESPONDENT
JUDGMENT
1 The Notice of Motion dated 25th September 2018 was filed on 1st of October 2018 pursuant to leave granted by this court on 20th September 2018.
2 The Notice of Motion seeks the following orders:
(i) That the applicant be granted leave to apply for an order of certiorari to bring into this court and quash the decision of the Secretary/Chief Executive Officer of Ethics and Anti Corruption commission to summon the Applicant, Wilson Kipkoti for purposes of interviewing and recording statements pursuant to the letter dated 12th January, 2018.
(ii) That the Applicant be granted leave to apply for order of prohibition preventing the Secretary/Chief Executive Officer, Ethics and Anti Corruption Commission or any other person acting on his behest, from summoning, interviewing and or recording the statement of Wilson Kipkoti, pursuant to the letter dated 12th January, 2018.
(iii) That costs of this application be provided for.
3 It is supported by the grounds on its face plus the statement of the Applicant.
4 The Respondent filed a replying affidavit sworn by Catherine Ngari opposing the application.
5 Both counsel agreed to dispose of the application by written submissions.
6 The Notice of Motion herein clearly seeksLeave to apply for orders of Certiorari and Prohibition. As stated above Leave was granted by this court on 22nd September 2018. The court directed that the Applicant files the substantive motion for the orders being sought. Instead of him seeking the substantive orders, he again sought leave to apply for the orders of certiorari and prohibition. This is clear on the face of the application. Though in his statement the Applicant clearly indicates the reliefs sought, this court will not substitute the statement for the Notice of Motion. The Notice of Motion must clearly set out the reliefs sought by the Applicant. A party is bound by his pleadings, and so is the Applicant herein. The Applicant failed to set out the proper reliefs in his Notice of Motion. There is therefore no substantive prayer sought for this court to deliberate on. I therefore dismiss the Notice of Motion dated 25th September 2018 with costs to the Respondent.
Orders accordingly.
Dated, signed and delivered this 22nd November 2018 in open court at Nairobi.
HEDWIG I. ONG’UDI
JUDGE