This ruling is in respect of the Notice of Motion application dated 21st May 2024 brought by the Respondent pursuant to the provisions of Order 51 and Order 53 Rule 2 of the Civil Procedure Rules.
It seeks for orders that the honourable court be pleased to strike out the Notice of Motion application dated 7th December 2023 for incompetence and non-compliance with the law. It also seeks for costs of the application.
The grounds upon which the application was brought as contained in the Supporting Affidavit are that the ex parte applicant had not filed the substantive application within 21 days as ordered by court on 8th December 2023 and that the ex parte applicant had not paid the requisite court fees of Kshs.10,000/=. That the Notice of Motion dated 7th December 2023 serves no purpose and should be struck out with costs.
The application was opposed vide the grounds of opposition dated 27th May 2024 filed on behalf of the ex parte applicants. It was the ex parte applicants’ case that the application is misconceived and bad at law and offends the provisions of article 159(2) of the Constitution of Kenya. That there is nothing misconceived, incompetent or fatally defective about the application by Notice of Motion dated 7th December 2023. That the application is a waste of judicial time.
I have considered the application, the grounds of opposition thereto and the written submissions filed. The application dated 7th December 2023 that is sought to be struck out is the initial application filed by the ex parte applicant in these proceedings seeking for leave to bring Judicial Review proceedings. The court record shows that the application which was brought under certificate of urgency was first heard on 8th December 2023 when leave to file substantive Judicial Review application was granted ex parte. The record further shows that prayer 3 of the application was reserved for inter partes hearing which took place on 14/12/2023 and Ruling in respect thereof delivered on the same day. The Respondent was represented by Counsel in the proceedings.
The Notice of Motion dated 7th December 2023, having been heard and disposed of, is therefore not available for striking out as prayed in the present application.
For the foregoing reasons, the application dated 21/5/2024 is misconceived and not merited and is hereby dismissed with costs to the Ex parte Applicants.
Orders accordingly.
Ruling, dated and signed at Kisumu, read virtually this 24th day of April, 2025 through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Maureen- Court Assistant.
Mbeche for the Applicant.
Okero for the ex parte applicants/Respondents.