On 20 June 2022, the applicant was granted leave to file a motion for the judicial review orders of certiorari, mandamus and prohibition. The order granting leave and the directions on the filing of the substantive motion was in these terms:
“I have considered the applicant’s application dated 20 June 2022 filed under a certificate of urgency of even date. I hereby certify the application urgent and also grant leave to file the substantive motion for judicial review in terms of prayers 1(a), (b), (c) and (d) of the summons. The main motion to be filed and served within seven days of the date of these directions. Whether the applicant deserves an interim stay is a question that will be argued inter partes on 4 July 2022. It is so ordered.”
The motion was not filed until 4 July 2022. On that date, when the parties appeared before me, Mr. Ajulu, the learned counsel for the applicant, informed the court as follows:
“The applicant was deported. We, however, filed the motion this morning. We request that the time for filing and service be extended.”
I directed that the purported motion to be served for directions on 25 July 2022. On this particular date, Mr Kariuki for the Attorney General asked for time to file a response to the motion. The matter was thus set for another mention on 5 October 2022.
Neither the applicant nor his advocate was in court on 5 October 2022. I then directed that the matter be heard on 8 November 2022. The applicant did not appear in court on this date and so the suit was fixed for hearing on 7 February 2023. Once again, the applicant or his advocate did not appear in court. Similarly, there was no appearance for the applicant on 10 May 2023.
Mr. Munene, the learned counsel for the applicant applied the application to be dismissed for want of prosecution. The application was allowed and the suit dismissed.
Against this background, the applicant has now filed an application for reinstatement of the suit. The application is dated 29 August 2023 and was filed in court on 29 August 2023. The application is by way of a motion expressed to be brought under Order 12 Rule 6 of the Civil Procedure Rules.
The application is supported by the affidavit of Moses Ajulu, the learned counsel for the applicant.
He has sworn that his client is barred from entering Kenya but still he wants his suit to be heard on merits.
On 10 May 2023 the matter was set for mention but that counsel could not appear in court because of what he has described as a “technical challenge” in logging in on time on the court’s virtual platform. When he logged in at a few minutes later, the suit had been called out and dismissed for want of prosecution.
The Attorney General has opposed the motion and Mr. Munene Wanjohi swore a replying affidavit in this regard. According to counsel, the applicant has not been keen on prosecuting his application as he or his counsel has failed to appear in court on a number of occasions and no reasons have been given for their non-appearance.
I have considered the applicant’s application, the response thereto and the submissions filed by the applicant.
I must state at the very outset that no valid application for judicial review could possibly be filed upon expiry of the time prescribed for filing of such an application.
The applicant’s learned counsel admitted, and indeed it is apparent on record, that the purported motion was filed out of time. This being the case, the motion sought to be reinstated is a nullity ab initio. I need not belabor the point that there is no suit worth of reinstatement before court.
Even if it was to be assumed that the applicant’s dismissed motion could be reinstated, no reason has been proffered why it had to take the applicant more than three months to file the application for reinstatement.
It is apparent from the applicant’s learned counsel’s own affidavit that he was aware of the dismissal of the suit a few minutes after it had been dismissed on 10 May 2023 yet it was not until the 29 August 2023 that he filed the application for reinstatement. A delay of more than three months in these circumstances is, for all intents and purposes, inordinate.
For the reasons, I have given I am not satisfied that there is any merit in the applicant’s application. It is hereby dismissed with costs. It is so ordered.
“I have considered the applicant’s application dated 20 June 2022 filed under a certificate of urgency of even date. I hereby certify the application urgent and also grant leave to file the substantive motion for judicial review in terms of prayers 1(a), (b), (c) and (d) of the summons. The main motion to be filed and served within seven days of the date of these directions. Whether the applicant deserves an interim stay is a question that will be argued inter partes on 4 July 2022. It is so ordered.”
The motion was not filed until 4 July 2022. On that date, when the parties appeared before me, Mr. Ajulu, the learned counsel for the applicant, informed the court as follows:
“The applicant was deported. We, however, filed the motion this morning. We request that the time for filing and service be extended.”
I directed that the purported motion to be served for directions on 25 July 2022. On this particular date, Mr Kariuki for the Attorney General asked for time to file a response to the motion. The matter was thus set for another mention on 5 October 2022.
Neither the applicant nor his advocate was in court on 5 October 2022. I then directed that the matter be heard on 8 November 2022. The applicant did not appear in court on this date and so the suit was fixed for hearing on 7 February 2023. Once again, the applicant or his advocate did not appear in court. Similarly, there was no appearance for the applicant on 10 May 2023.
Mr. Munene, the learned counsel for the applicant applied the application to be dismissed for want of prosecution. The application was allowed and the suit dismissed.
Against this background, the applicant has now filed an application for reinstatement of the suit. The application is dated 29 August 2023 and was filed in court on 29 August 2023. The application is by way of a motion expressed to be brought under Order 12 Rule 6 of the Civil Procedure Rules.
The application is supported by the affidavit of Moses Ajulu, the learned counsel for the applicant.
He has sworn that his client is barred from entering Kenya but still he wants his suit to be heard on merits.
On 10 May 2023 the matter was set for mention but that counsel could not appear in court because of what he has described as a “technical challenge” in logging in on time on the court’s virtual platform. When he logged in at a few minutes later, the suit had been called out and dismissed for want of prosecution.
The Attorney General has opposed the motion and Mr. Munene Wanjohi swore a replying affidavit in this regard. According to counsel, the applicant has not been keen on prosecuting his application as he or his counsel has failed to appear in court on a number of occasions and no reasons have been given for their non-appearance.
I have considered the applicant’s application, the response thereto and the submissions filed by the applicant.
I must state at the very outset that no valid application for judicial review could possibly be filed upon expiry of the time prescribed for filing of such an application.
The applicant’s learned counsel admitted, and indeed it is apparent on record, that the purported motion was filed out of time. This being the case, the motion sought to be reinstated is a nullity ab initio. I need not belabor the point that there is no suit worth of reinstatement before court.
Even if it was to be assumed that the applicant’s dismissed motion could be reinstated, no reason has been proffered why it had to take the applicant more than three months to file the application for reinstatement.
It is apparent from the applicant’s learned counsel’s own affidavit that he was aware of the dismissal of the suit a few minutes after it had been dismissed on 10 May 2023 yet it was not until the 29 August 2023 that he filed the application for reinstatement. A delay of more than three months in these circumstances is, for all intents and purposes, inordinate.
For the reasons, I have given I am not satisfied that there is any merit in the applicant’s application. It is hereby dismissed with costs. It is so ordered.