The applicant herein filed a chamber summons application dated 9th august 2023 under order 53 (1) & (2) of the civil procedure Rules 2010 seeking leave of this court to apply for orders of Certiorari and prohibition challenging the decision of the respondent contained in a letter dated 28th July 2023. The letter directed the banning and/or pulling down of all signages and bill boards advertising land sales in the county of Kajiado.
On 26th march 2025, the court granted the applicant leave and directed that the substantive Motion be filed within 21 days of such leave. The applicant filed the aforementioned motion on 27th may 2025 over a month outside the period granted by the court.
On 8th July 2025, the respondent took out a preliminary objection against the entire suit and urged that the same be struck out on the following grounds;
1. THAT the substantive Judicial Review Application filed is incurably defective and in breach of the clearly laid down procedure under Order 53 of the Civil Procedure Rules, 2010 for being filed outside the mandatory twenty-one days period stipulated under Order 53 rule 3(1) of the Civil Procedure Rules.
2. THAT the filing of the substantive Judicial Review Application outside the prescribed period without leave of the court renders the application irregular and incompetent.
3. THAT the application and the entire suit blatantly offends and disregard the mandatory requirements of Order 53 rule 3(1) of the Civil Procedure Rules and incurably incompetent.
4. THAT the application made under Order 53 being sui generis its procedure must be strictly followed and the suit being defective ought to be dismissed with cost.
The application was canvassed by way of written submissions which I have considered together with the authorities cited and relied on by the parties.
Preliminary Objection as stated in much-celebrated case of Mukisa Biscuits Manufacturing Company Limited –vs- West End Distributors [1969] E A 696 ” consists of point of law which has been pleaded or which arises by clear implication out of pleading, and which if argued as a Preliminary point, will dispose of the suit. Examples are an objection to the jurisdiction of the court, (emphasis supplied), a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration”.
Once raised the Preliminary Objection should have the potential of disposing of the suit at that point without the need to go for trial.
Order 53 Rule 3(1) of the Civil Procedure Rules provides as follows; “Where leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within 21 days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for hearing”
It is therefore abundantly clear that the substantive motion shall unless time is enlarged be filed within 21 days of grant of leave. In Wilson Osolo v John Ojiambo Ochola & the Attorney General CA No. 6 Nairobi of 1995, the Court of Appeal stated:
“It was a mandatory requirement of Order 53 Rule 3(1) of the Civil Procedure Rules …that the notice of motion must be filed within 21 days of grant of such leave. No such notice of motion having been apparently filed within 21 days on 15th February 1985 there was no proper application before the Superior court. This period of 21 days could have been extended by a reasonable period had there been an application under Order 49 of the Civil Procedure Rules.”
The exparte Applicant filed the motion over a month after the leave was granted and contend that the delay though regrettable was not inordinate and was occasioned by administrative oversight. That may be so but it is not an answer to a preliminary point of law raised by the respondent. Time, in principle and applicability, under Order 53 of the civil procedure Rules is an important element in Judicial Review proceedings and are subject to statutory timelines. This position was stated in the case of MARY WAMBUI MUNENE VERSUS PETER GICHUKI KINGARA &2 OTHERS SUP CASE 7 OF 2014
The failure by the applicant to file the Notice of Motion within the prescribed time provided in law is not a mere infraction of technicality but a substantive one which cannot be salvaged by invocation of Article 159 (2) (d) of the constitution. Article 159(2) (d) of the Constitution enjoins courts of law to administer justice without undue regard to procedural technicalities. However, the Article was not meant to be a panacea for Advocates negligence or casual approach in dealing with the pleadings. In TELCOM KENYA LIMITED VERSUS JOHN OCHANDA 2014 Eklr, the court of appeal stated as follows;
“we are content to state that the constitutional provision is not meant to whitewash every procedural failing and it is not meant to place procedural rules at naught … there is great utility in complying with the rules of procedure and that such compliance is neither anathema nor antithetical to the attainment of substantive justice.
In ABDUL AZIZ JUMA VERSUS NIKISUHU INVESTMENT &2 OTHERS ELC 291 0F 2013, The court stated that Article 159 of the constitution was never intended to override the clear provision of statute unless such provision of the statute is un-constitutional
The justification for delay proffered by the applicant would apply in an application for enlargement of time an issue that is not before this court at this stage.
Consequently, the Notice of Motion filed on 27th may 2025 offends the clear and mandatory provision of the law and the same is struck out with cost to the respondent.
On 26th march 2025, the court granted the applicant leave and directed that the substantive Motion be filed within 21 days of such leave. The applicant filed the aforementioned motion on 27th may 2025 over a month outside the period granted by the court.
On 8th July 2025, the respondent took out a preliminary objection against the entire suit and urged that the same be struck out on the following grounds;
1. THAT the substantive Judicial Review Application filed is incurably defective and in breach of the clearly laid down procedure under Order 53 of the Civil Procedure Rules, 2010 for being filed outside the mandatory twenty-one days period stipulated under Order 53 rule 3(1) of the Civil Procedure Rules.
2. THAT the filing of the substantive Judicial Review Application outside the prescribed period without leave of the court renders the application irregular and incompetent.
3. THAT the application and the entire suit blatantly offends and disregard the mandatory requirements of Order 53 rule 3(1) of the Civil Procedure Rules and incurably incompetent.
4. THAT the application made under Order 53 being sui generis its procedure must be strictly followed and the suit being defective ought to be dismissed with cost.
The application was canvassed by way of written submissions which I have considered together with the authorities cited and relied on by the parties.
Preliminary Objection as stated in much-celebrated case of Mukisa Biscuits Manufacturing Company Limited –vs- West End Distributors [1969] E A 696 ” consists of point of law which has been pleaded or which arises by clear implication out of pleading, and which if argued as a Preliminary point, will dispose of the suit. Examples are an objection to the jurisdiction of the court, (emphasis supplied), a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration”.
Once raised the Preliminary Objection should have the potential of disposing of the suit at that point without the need to go for trial.
Order 53 Rule 3(1) of the Civil Procedure Rules provides as follows; “Where leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within 21 days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for hearing”
It is therefore abundantly clear that the substantive motion shall unless time is enlarged be filed within 21 days of grant of leave. In Wilson Osolo v John Ojiambo Ochola & the Attorney General CA No. 6 Nairobi of 1995, the Court of Appeal stated:
“It was a mandatory requirement of Order 53 Rule 3(1) of the Civil Procedure Rules …that the notice of motion must be filed within 21 days of grant of such leave. No such notice of motion having been apparently filed within 21 days on 15th February 1985 there was no proper application before the Superior court. This period of 21 days could have been extended by a reasonable period had there been an application under Order 49 of the Civil Procedure Rules.”
The exparte Applicant filed the motion over a month after the leave was granted and contend that the delay though regrettable was not inordinate and was occasioned by administrative oversight. That may be so but it is not an answer to a preliminary point of law raised by the respondent. Time, in principle and applicability, under Order 53 of the civil procedure Rules is an important element in Judicial Review proceedings and are subject to statutory timelines. This position was stated in the case of MARY WAMBUI MUNENE VERSUS PETER GICHUKI KINGARA &2 OTHERS SUP CASE 7 OF 2014
The failure by the applicant to file the Notice of Motion within the prescribed time provided in law is not a mere infraction of technicality but a substantive one which cannot be salvaged by invocation of Article 159 (2) (d) of the constitution. Article 159(2) (d) of the Constitution enjoins courts of law to administer justice without undue regard to procedural technicalities. However, the Article was not meant to be a panacea for Advocates negligence or casual approach in dealing with the pleadings. In TELCOM KENYA LIMITED VERSUS JOHN OCHANDA 2014 Eklr, the court of appeal stated as follows;
“we are content to state that the constitutional provision is not meant to whitewash every procedural failing and it is not meant to place procedural rules at naught … there is great utility in complying with the rules of procedure and that such compliance is neither anathema nor antithetical to the attainment of substantive justice.
In ABDUL AZIZ JUMA VERSUS NIKISUHU INVESTMENT &2 OTHERS ELC 291 0F 2013, The court stated that Article 159 of the constitution was never intended to override the clear provision of statute unless such provision of the statute is un-constitutional
The justification for delay proffered by the applicant would apply in an application for enlargement of time an issue that is not before this court at this stage.
Consequently, the Notice of Motion filed on 27th may 2025 offends the clear and mandatory provision of the law and the same is struck out with cost to the respondent.