1. The applicant’s chamber summons dated 16 December 2022 seeking leave to file a substantive motion for judicial review reliefs was granted on 3 January 2023. In granting leave, the applicant was directed to file a substantive motion for judicial review within seven days from 3 January 2023. However, it was not until 25 January 2023 that the applicant filed his motion. Thus, the substantive motion was filed out of time.
2. Failure to file the substantive motion in time is amongst the grounds that have been raised in objection to the applicant’s application. The 1st ,2nd ,4th and 5th respondent’s filed a preliminary objection dated 9 February 2023 while the 3rd respondent filed grounds of opposition dated 26 February 2024. The 2nd and 3rd interested party filed both a replying affidavit sworn on 13 February 2023 and grounds of opposition dated 15 February 2023; and, finally the 13th interested party filed a replying affidavit sworn on 20 January 2023.
3. Narrowing down to this ground of the failure by the applicant to file the substantive motion as directed, the 1st ,2nd ,4th and 5th respondents have pleaded as follows in their grounds of objection:
“1.THAT leave to file the substantive Notice of Motion was granted by the Honourable Court on 3rd January, 2023. In the said Ruling, the Applicant was ordered to file and serve the substantive motion within 7 days.
2. THAT as of 25th of January, 2023 when the matter came up for mention; the Applicant had not filed and served the substantive Motion.
3. THAT as of the date of filing this preliminary objection, the Applicant had not filed the main motion which is contrary to the Orders of the Court of 3rd January, 2023 and also Order 53 Rule 3 (1) of the Civil Procedures Rules, 2010.
4. THAT the purported substantive Notice of Motion dated 26th December, 2022 was filed a week or so before leave was granted. Leave cannot operate backwards.
5. THAT consequently, the leave granted on 3rd January, 2023 is spent. Failure to file the main motion means that there is no application for determination by the Court as the Chamber Summons application is spent.
6. THAT the Exparte Applicant has offended the Mandatory provisions of Order 53 Rule 3 (1) of the Civil Procedure Rules, 2010 which provides as hereunder:-
"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."
7. THAT be that as it may, under the Civil Procedure Rules 2010, Order 53 is very clear on the timelines within which to file the Substantive Notice of Motion. The Order expressly provides for 21 days within which to file a substantive notice of motion.
8. THAT the Applicants’ Notice of Motion Application dated 26th December, 2022 offends the mandatory provisions of Sections 8 and 9 of the Law Reform Act, Cap 26, Laws of Kenya.
4. The failure to comply with the directions of the court is as deprecatory as disobedience of a court order. Speaking of the need to comply with court orders, rules and practice directions, the Supreme Court 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) stated as follows:
“Taking all the above matters into account, we must state that, this court has on several instances underscored the importance of compliance with its orders, rules and practice directions. With regard to filing and service of documents within the requisite time, the court has in a long line of decisions stressed that it will not countenance breaches of timelines set by the rules or by the court, and armed the general constitutional principle that justice shall not be delayed. See Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others, SC Petition No 5 of 2016; [2018] eKLR and Kenya Railways Corporation & 2 others v Okoiti & 3 others, SC Petition (Application)No 13 of 2020& Petition 18 of 2020 (Consolidated)); [2022] KESC 68 (KLR). It goes without saying that compliance with court orders goes to the root of the rule of law as well as the dignity of any court.”
5. Needless to say obedience of court orders is mandatory if, as society we take pride in the rule of law and upholding the integrity of the courts, in particular, and the administration of justice, generally. Turning back to the applicant’s case, there is no substitute for compliance with the court’s direction on when the substantive motion ought to have been filed. Article 159(2) (d) which implores courts to administer justice without undue regard to procedural technicalities would not be of much help to the applicant because I do not regard court orders as procedural technicalities to be ignored at a litigant’s convenience.
6. Besides the court’s directions, order 53 Rule 3(1) of the Civil Procedure Rules which provides for the period within which the substantive motion in judicial review proceedings ought to be filed is couched in mandatory terms. In Republic v Linda Wanjiku & 2 Others ex parte E.N. (Applying as father and next of friend of SK(Minor) [2017] eKLR the court observed:
"..failure to comply with the order for leave on the time lines the substantive motion as filed is incompetent."
The Court also cited the Court of Appeal decision in United Housing Estate Limited v Nyals (Kenya) Ltd Civil Application No. Nairobi 84 of 1996 where it was held;
"what emerges from the decision of the Court of Appeal is that a party cannot unilaterally decide not to comply with the conditions attached to the exercise of discretion of the court… Non-compliance with court order cannot be a procedural technicality curable by application of Article 159 of the Constitution."
7. In light of the foregoing, there is no proper application before me. I hold that the applicant’s application is incompetent, misconceived and an abuse of the due process of this Honourable Court. It is hereby struck out with costs to the respondents and 2nd,3rd and 13th interested parties. It is so ordered.
2. Failure to file the substantive motion in time is amongst the grounds that have been raised in objection to the applicant’s application. The 1st ,2nd ,4th and 5th respondent’s filed a preliminary objection dated 9 February 2023 while the 3rd respondent filed grounds of opposition dated 26 February 2024. The 2nd and 3rd interested party filed both a replying affidavit sworn on 13 February 2023 and grounds of opposition dated 15 February 2023; and, finally the 13th interested party filed a replying affidavit sworn on 20 January 2023.
3. Narrowing down to this ground of the failure by the applicant to file the substantive motion as directed, the 1st ,2nd ,4th and 5th respondents have pleaded as follows in their grounds of objection:
“1.THAT leave to file the substantive Notice of Motion was granted by the Honourable Court on 3rd January, 2023. In the said Ruling, the Applicant was ordered to file and serve the substantive motion within 7 days.
2. THAT as of 25th of January, 2023 when the matter came up for mention; the Applicant had not filed and served the substantive Motion.
3. THAT as of the date of filing this preliminary objection, the Applicant had not filed the main motion which is contrary to the Orders of the Court of 3rd January, 2023 and also Order 53 Rule 3 (1) of the Civil Procedures Rules, 2010.
4. THAT the purported substantive Notice of Motion dated 26th December, 2022 was filed a week or so before leave was granted. Leave cannot operate backwards.
5. THAT consequently, the leave granted on 3rd January, 2023 is spent. Failure to file the main motion means that there is no application for determination by the Court as the Chamber Summons application is spent.
6. THAT the Exparte Applicant has offended the Mandatory provisions of Order 53 Rule 3 (1) of the Civil Procedure Rules, 2010 which provides as hereunder:-
"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."
7. THAT be that as it may, under the Civil Procedure Rules 2010, Order 53 is very clear on the timelines within which to file the Substantive Notice of Motion. The Order expressly provides for 21 days within which to file a substantive notice of motion.
8. THAT the Applicants’ Notice of Motion Application dated 26th December, 2022 offends the mandatory provisions of Sections 8 and 9 of the Law Reform Act, Cap 26, Laws of Kenya.
4. The failure to comply with the directions of the court is as deprecatory as disobedience of a court order. Speaking of the need to comply with court orders, rules and practice directions, the Supreme Court 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) stated as follows:
“Taking all the above matters into account, we must state that, this court has on several instances underscored the importance of compliance with its orders, rules and practice directions. With regard to filing and service of documents within the requisite time, the court has in a long line of decisions stressed that it will not countenance breaches of timelines set by the rules or by the court, and armed the general constitutional principle that justice shall not be delayed. See Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others, SC Petition No 5 of 2016; [2018] eKLR and Kenya Railways Corporation & 2 others v Okoiti & 3 others, SC Petition (Application)No 13 of 2020& Petition 18 of 2020 (Consolidated)); [2022] KESC 68 (KLR). It goes without saying that compliance with court orders goes to the root of the rule of law as well as the dignity of any court.”
5. Needless to say obedience of court orders is mandatory if, as society we take pride in the rule of law and upholding the integrity of the courts, in particular, and the administration of justice, generally. Turning back to the applicant’s case, there is no substitute for compliance with the court’s direction on when the substantive motion ought to have been filed. Article 159(2) (d) which implores courts to administer justice without undue regard to procedural technicalities would not be of much help to the applicant because I do not regard court orders as procedural technicalities to be ignored at a litigant’s convenience.
6. Besides the court’s directions, order 53 Rule 3(1) of the Civil Procedure Rules which provides for the period within which the substantive motion in judicial review proceedings ought to be filed is couched in mandatory terms. In Republic v Linda Wanjiku & 2 Others ex parte E.N. (Applying as father and next of friend of SK(Minor) [2017] eKLR the court observed:
"..failure to comply with the order for leave on the time lines the substantive motion as filed is incompetent."
The Court also cited the Court of Appeal decision in United Housing Estate Limited v Nyals (Kenya) Ltd Civil Application No. Nairobi 84 of 1996 where it was held;
"what emerges from the decision of the Court of Appeal is that a party cannot unilaterally decide not to comply with the conditions attached to the exercise of discretion of the court… Non-compliance with court order cannot be a procedural technicality curable by application of Article 159 of the Constitution."
7. In light of the foregoing, there is no proper application before me. I hold that the applicant’s application is incompetent, misconceived and an abuse of the due process of this Honourable Court. It is hereby struck out with costs to the respondents and 2nd,3rd and 13th interested parties. It is so ordered.