Nashon Fitzwanga v Environment Disaster Research Foundation

High Court, at Mombasa

March 19, 2002

 Onyancha J

Civil Case No 20 of 1999

Civil Practice and Procedure – interlocutory applications – application filed after dismissal of suit – such application null and void .

Consent Orders – recording and signing of consent orders – whether act amounts to administrative or judicial act – legal consequences of failure to sign and record consent orders – legality of orders extracted from unrecorded and unsigned consent – duties of the Deputy Registrar in consents.

The court was in the process of hearing an application seeking to have the Kenya Revenue Authority enjoined as a party to the suit when it was brought to the attention of the court that the said application should be dismissed as it had been filed when the main suit was not in existence.

The court then sought to establish whether the suit was dismissed and whether it was successfully reinstated. The court in the process had to deal with the fact that there had been attempts to manipulate court officers and flagrantly abuse the regular court process.

Held:

1. The suit upon which the subject application was filed had been dismissed and was never successfully reinstated.

2. Any proceedings filed in a suit that has already been dismissed is not only irregular and void in a law but also a nullity.

3. All proceedings filed in the suit were in law automatically a nullity.

4. The act of recording a consent order and signing it, is not merely administrative, if is judicial and holds judicial or legal consequences.

5. In this case the Deputy Registrar failed to record the consent orders, therefore, legally the said consents did not become part of the court proceedings or judicial proceedings until they are so recorded and duly signed by the Deputy Registrar. The result of the failure is that there were no judicial orders of the court from which the Deputy Registrar could extract an order as he purported to do. Consequently the extracted order was null and void for not being based on any lawful order of this court.

 6. The application by Kenya revenue authority seeking to be enjoined as a party is also null and void.

Cases

Association of Members of Episcopal Conference in Eastern Africa (AMECEA) v Alfred Romani (t/a Romani Architects) & 3 others Civil Appeal No 22 of 2001

 Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order I rule 10(2), 22; order IXA; order IXB rule 1(2); order XLVIII rule 2A

2. Civil Procedure Act (cap 21) section 3A

Advocates

Mr Matuku for the Interested Party (Kenya Revenue Authority)

Mr Ongera for the Defendant.

Editorial Note

The judge in his ruling noted that there were some glaring and deliberate attempts that amounted to an abuse of the court process, illegalities and fraudulent acts. The judge directed that the matter be placed before the resident judge and judicial authorities to investigate this case and HCC. NO 204 of 1994 together with HCCC NO. 615 of 1996.