1. The Ex-parte Applicants filed Chamber Summons application dated 19th June, 2023 seeking leave to institute Judicial Review Proceedings for orders of Prohibition.
2. This Honourable Court certified the application as urgent and granted the ex- applicants leave under Direction Number 4 to file a substantive motion within 7 days from the date of the Ruling.
3. The Ex-parte Applicant did not comply with the ruling prompting the 2ND AND 4TH RESPONDENTS’ to file the NOTICE OF PRELIMINARY OBJECTION Dated 9th day of August 2023.
4. This ruling is in relation to the said preliminary objection.
5. The Notice of preliminary objection raise the following grounds:
1) THAT pursuant to the directions given by this Honourable Court on 21st June, 2023, the Ex parte applicants ought to have filed the substantive motion as at 28th June, 2023 and served the same upon the Respondents within the time limit granted.
2) THAT the Ex-parte Applicants’ application dated 19th June, 2023 has since been overtaken by events as they have not complied with courts directions.
3) THAT the application dated 19th June, 2023 ought to be struck out with costs to the respondents as the Ex-Parte Applicants have violated Order 53(Rule 3(1) of the Civil Procedure Rules.
6. The ruling and/or directions given by this Honourable Court were never adhered to.
7. In Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA, as he then was, had this to say on what a preliminary objection entails:
“A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
8. At page 701 paragraph B-C Sir Charles Newbold, P. stated:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...”(Emphasis added).
9. In Republic v Linda Wanjiku & 2 Others ex parte E.N. (Applying as father and next of friend of SK(Minor) the court observed that “...failure to comply with the order for leave on the time lines the substantive motion ought to be filed is incompetent.”
10. In Republic V Kenya Bureau of Standards &Others [2006] EA 345 wherein the Learned Judge held that:
“The law provides that the substantive motion seeking for prerogative orders must be filed within 21 days. The Law Reform Act, which is the substantive law dealing with prerogative orders, does not provide for the enlargement of time within which a party should file the motion.
11. Section 8 and 9 (3) of the Law Reform Act are couched in mandatory terms and the said statutes have no provision for extension of time. The High Court shall not, whether in the exercise of its civil or criminal jurisdiction, issue any of the prerogative writs of mandamus, prohibition or certiorari.
12. Article 159(2) of the Constitution cannot come to the rescue of an indolent litigant.
13. Order 53 Rule 3 (1) of the Civil Procedure Rules, 2010 in the following words: -
“When leave has been granted to apply for an order of Mandamus, prohibition or Certiorari, the application shall be made within twenty-one days by notice of motion to the high court, and there shall, unless the judge granting leave otherwise directed, be at least eight clear days between service of the notice of motion and the day named therein for the hearing.”
14. The word “shall.” per The Black's Law Dictionary, defines the word “shall” as follows: -
“As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary significance, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning: denoting obligation. It has a peremptory meaning, and is generally imperative or mandatory.”
15. The word “shall” when used in a statutory provision imports a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.
16. I am satisfied that the grounds as raised in the Notice of preliminary objection fall within the framework of the principles as enunciated in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA,.
17. In Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others (Application E029 of 2023) [2023] KESC 69 (KLR) (8 September 2023) (Ruling) Neutral citation: [2023] KESC 69 (KLR) the supreme court held…
“Be that as it may, to accede to the respondents’ prayer to deem the responses and/or submissions led out of time as properly before the Court is tantamount to sanctioning an illegality. The respondents ought to have 1st sought leave of the Court to let their responses out of time prior to ling the same. See Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others, SC Applic. No 16 of 2014; [2014] eKLR and University of Eldoret & another v. Hosea Sitienei & 3 Others, SC Applic. No. 8 of 2020; [2020] eKLR. Consequently, save for the 3rd and 4th respondents submissions, we strike out the responses and submissions led out of time without leave of the Court.”
18. In the instant case, the Ex-parte applicant has not even filed the Notice of motion or an application seeking to enlarge time.
19. This is a grave omission and or act of impunity and disregard to Court order that invites the orders as issues herein.
Disposition:
20. It is clear that the suit abated for non- compliance with court directions of 21st June, 2023.
Order:
1. The Notice of Preliminary objection dated 9th day of August 2023 is upheld.
2. The suit is dismissed with costs.
2. This Honourable Court certified the application as urgent and granted the ex- applicants leave under Direction Number 4 to file a substantive motion within 7 days from the date of the Ruling.
3. The Ex-parte Applicant did not comply with the ruling prompting the 2ND AND 4TH RESPONDENTS’ to file the NOTICE OF PRELIMINARY OBJECTION Dated 9th day of August 2023.
4. This ruling is in relation to the said preliminary objection.
5. The Notice of preliminary objection raise the following grounds:
1) THAT pursuant to the directions given by this Honourable Court on 21st June, 2023, the Ex parte applicants ought to have filed the substantive motion as at 28th June, 2023 and served the same upon the Respondents within the time limit granted.
2) THAT the Ex-parte Applicants’ application dated 19th June, 2023 has since been overtaken by events as they have not complied with courts directions.
3) THAT the application dated 19th June, 2023 ought to be struck out with costs to the respondents as the Ex-Parte Applicants have violated Order 53(Rule 3(1) of the Civil Procedure Rules.
6. The ruling and/or directions given by this Honourable Court were never adhered to.
7. In Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA, as he then was, had this to say on what a preliminary objection entails:
“A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
8. At page 701 paragraph B-C Sir Charles Newbold, P. stated:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...”(Emphasis added).
9. In Republic v Linda Wanjiku & 2 Others ex parte E.N. (Applying as father and next of friend of SK(Minor) the court observed that “...failure to comply with the order for leave on the time lines the substantive motion ought to be filed is incompetent.”
10. In Republic V Kenya Bureau of Standards &Others [2006] EA 345 wherein the Learned Judge held that:
“The law provides that the substantive motion seeking for prerogative orders must be filed within 21 days. The Law Reform Act, which is the substantive law dealing with prerogative orders, does not provide for the enlargement of time within which a party should file the motion.
11. Section 8 and 9 (3) of the Law Reform Act are couched in mandatory terms and the said statutes have no provision for extension of time. The High Court shall not, whether in the exercise of its civil or criminal jurisdiction, issue any of the prerogative writs of mandamus, prohibition or certiorari.
12. Article 159(2) of the Constitution cannot come to the rescue of an indolent litigant.
13. Order 53 Rule 3 (1) of the Civil Procedure Rules, 2010 in the following words: -
“When leave has been granted to apply for an order of Mandamus, prohibition or Certiorari, the application shall be made within twenty-one days by notice of motion to the high court, and there shall, unless the judge granting leave otherwise directed, be at least eight clear days between service of the notice of motion and the day named therein for the hearing.”
14. The word “shall.” per The Black's Law Dictionary, defines the word “shall” as follows: -
“As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary significance, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning: denoting obligation. It has a peremptory meaning, and is generally imperative or mandatory.”
15. The word “shall” when used in a statutory provision imports a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.
16. I am satisfied that the grounds as raised in the Notice of preliminary objection fall within the framework of the principles as enunciated in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F Law JA,.
17. In Okoiti & 3 others v Cabinet Secretary for the National Treasury and Planning & 10 others (Application E029 of 2023) [2023] KESC 69 (KLR) (8 September 2023) (Ruling) Neutral citation: [2023] KESC 69 (KLR) the supreme court held…
“Be that as it may, to accede to the respondents’ prayer to deem the responses and/or submissions led out of time as properly before the Court is tantamount to sanctioning an illegality. The respondents ought to have 1st sought leave of the Court to let their responses out of time prior to ling the same. See Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others, SC Applic. No 16 of 2014; [2014] eKLR and University of Eldoret & another v. Hosea Sitienei & 3 Others, SC Applic. No. 8 of 2020; [2020] eKLR. Consequently, save for the 3rd and 4th respondents submissions, we strike out the responses and submissions led out of time without leave of the Court.”
18. In the instant case, the Ex-parte applicant has not even filed the Notice of motion or an application seeking to enlarge time.
19. This is a grave omission and or act of impunity and disregard to Court order that invites the orders as issues herein.
Disposition:
20. It is clear that the suit abated for non- compliance with court directions of 21st June, 2023.
Order:
1. The Notice of Preliminary objection dated 9th day of August 2023 is upheld.
2. The suit is dismissed with costs.