Republic v Funyula Land Disputes Tribunal & 3

others

High Court at Busia June 4, 2004

Sergon J

Miscellaneous Application No 327 of 2003

Judicial Review – Notice of motion filed after 21 days from date of leave – order 49 rule 3A of the Civil Procedure Rules cannot remedy the situation

Judicial Review – substantive motion instituted in the same file as leave – failure to commence the motion as a separate miscellaneous application is fatal.

The ex parte applicant was granted leave on the 5th day of December 2003 to file the substantive motion within 21 days. Pursuant to order 53 rule 3(1) of the Civil Procedure Rules. The interested parties raised preliminary points of law on the grounds that the motion was filed out of time. The motion was not properly before the Court because it was commenced under the file which leave was sought and obtained and that the ex parte applicant had indicated that the motion was filed pursuant to order 52 of the Civil Procedure Rules.

Held:

1. Order 53 was enacted pursuant to the provisions of sections 8 and 9 of the Law Reform Act which vest in the High Court of Kenya the power to issue orders of certiorari, prohibition and mandamus. The provisions are not subject to any Act of Parliament.

2. Under order 53 rule 3 (1), the substantive motion can only be filed after leave has been obtained. The law does not envisage a situation where the motion is filed under the file through which leave was issued. The Chamber Summons is considered as spent when leave has been granted.The applicant should thus originate the proceedings by filing the notice of motion in a separate miscellaneous application. The failure to adhere to this practice renders the whole motion fatally defective for being improperly before the Court.

3. It is trite law that the Court is barred from issuing orders of mandamus, prohibition or certiorari in exercise of its civil or criminal jurisdiction.

Cases

1. Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge & others Civil Appeal No 266 of 1996 (NBI)

2. Commissioner of Lands v Kunste Hotel Ltd Civil Appeal No 234 of 1995

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XLIX rule 3A; order LII rule 3; order LIII rule 3(1)

2. Law Reform Act (cap 26) sections 8, 9

Advocates

Mr Omondi for the Interested Parties

Mr Bogonko for the ex parte Applicant

Kariuki & 2 others v Minister for Gender, Sports,

Culture & Social Services & 2 others

High Court, at Nairobi June 4, 2004

Lenaola Ag J

Miscellaneous Civil Application No 389 of 2004

Contempt of Court - service of court order – failure to effect personal service - no Penal Notice indorsed on court order – whether one can be held guilty for contempt in the circumstances inspite of knowledge of the order - whether service on contemnor’s advocate constitutes personal service.

On 26th March 2004, the Court issued orders that leave be granted to the applicants to commence judicial review proceedings to challenge the Minister’s decision to remove the applicants as officials of the Kenya Football Federation (KFF) and appoint a Stakeholders Transitional Committee in its place. The Court also ordered that the leave so granted do operate as a stay of the decision.

The Minister nevertheless proceeded with the inauguration of the Committee.

An application was made to court to commit the Minister for contempt. The Minister, in reply, contended that he was not served with a court order by one of the applicants and any service effected on the law firm appointed by the Attorney General was not proper service and no personal service was effected on him. In any event, the Minister further contended, no Penal Notice was indorsed on the face of the court orders as by law required.

Held:

1. The argument that in contempt of court proceedings, personal service need not be effected on a Minister is weak, unsubstantiated and unsupported by Kenyan authorities.

2. In England, as a general rule, no order of court requiring a person to do or restrain from doing any act may be enforced unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question. The copy of the order served must be endorsed with a notice informing the person on whom the order is served that if he disobeys the order, he is liable to the process of execution to compel him to obey it.

3. The Court orders must be obeyed whether one agrees with them or not. If one does not agree with an order, then he ought to move the court to discharge the same. To blatantly ignore it and expect that the court would turn its eye away is to underestimate and belittle the purpose for which courts are set up.

4. Service on the alleged contemnor’s advocates did not constitute personal service and even if the alleged contemnor had knowledge of the court order, he would not be liable for contempt.

Application dismissed.

Cases

1. Nyamogo v KPTC Court of Appeal Application No Nai 264/1993

2. Wildlife Lodges Ltd v County Council of Narok & another High Court Civil Case No 1248 of 2003

3. Githunguri v Republic [1986] KLR 1

4. Banda, Kampanje v Hon Gwanda Chakuamba Civil Cause No 1841 of 2001 (High Court of Malawi)

5. Wang’ondu, Mwangi v Nairobi City Commission Civil Appeal No 95 of 1988

6. Ochino, Jacob Zedekiah & another v George Aura Okombo Civil Application No 6 of 1989

7. Chimna, Dr Peter v Hon Gwanda Malawi Supreme Court No 2 of 2000

8. Wanjohi, Isaac & another v Rosalina Macharia Civil Case No 450 of 1995

9. Hadkinson v Hadkinson [1952] 2 All ER 567; [1952] 285

Texts

Hailsham, Lord et al (Eds) (1974) Halsbury’s Laws of England London: Butterworths 4th Edn Vol IX

Statutes

No statutes referred.

Advocates

Mr Mailanyi for the Applicant

Mr Nyamondi for the Respondent

Criminal Law - robbery with violence - three accused persons convicted and sentenced to death - first appeal to the High Court - duty of first appellate court to re-evaluate the evidence and make its own conclusions - whether High Court failed in this duty - evidence -evidnce of identification or recognition - duty of court to examine such evidence with care.