Case Metadata |
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| Case Number: | Miscellaneous Civil Application 67 of 1992 |
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| Parties: | Municipal Council of Mombasa v Alibhai Kanji & others Ex - Parte Ladha |
| Date Delivered: | 23 Jun 1994 |
| Case Class: | Civil |
| Court: | High Court at Mombasa |
| Case Action: | Ruling |
| Judge(s): | Isaac Charles Cheskaki Wambilyangah |
| Citation: | Municipal Council of Mombasa v Alibhai Kanji & others Ex - Parte Ladha [1994] eKLR |
| Advocates: | Mr Gautama for the Applicant Mr Gikandi for the Respondent |
| Court Division: | Judicial Review |
| County: | Mombasa |
| Advocates: | Mr Gautama for the Applicant Mr Gikandi for the Respondent |
| Case Summary: | Municipal Council of Mombasa v Kanji & others Ex Parte Ladha High Court, at Mombasa June 23, 1994 Wambilyangah J Miscellaneous Civil Application No 67 of 1992 Judicial Review – application for – certiorari and mandamus – where it’s shown that leave was sought – where one objects stating leave was not sought – where original files are lost – whether preliminary objection should be granted or disallowed – Civil Procedure Rules order LIII. This was an application for judicial review seeking orders of certiorari and mandamus under order LIII of the Civil Procedure Rules. This was in relation to the suit that had been filed by Municipal Council of Mombasa to recover the outstanding arrears of rates in respect of property No 302 section V/MN registered in the name of one Alibhai Kanji. It was argued on behalf of the applicant that the property should not have been sold by an auctioneer who purported to execute a decree issued by a Magistrate’s Court because the purported service of the summons to enter appearance in the case had not been effected. The respondent’s counsel raised a preliminary point whose thrust was that the applicant did not issue notice nor did he obtain the leave of the Court both of which were mandatory requirements under the Rules before the Rules in LN 164 of 1992 purportedly abolished them. Held: 1. Where it is proved that there was a defective or no service of the process but which followed by unseemingly hurried court proceedings and orders, the High Court would invoke its jurisdiction of judicial review and make an order of certiorari, mandamus or prohibition in favour of an aggrieved party. The Court’s duty on such an application will only confine itself to the question of legality. 2. The remedy of certiorari is discretionary. It is available to the High Court for the purpose of ensuring that the lower courts do not abuse or exceed their powers and thereby make irregular and oppressive orders. 3. This application itself related to fundamental issues which had to be determined on merit. Objection disallowed. Cases Matiba, Kenneth Stanley Njindo v Attorney General Civil Application No 790 of 1993 Statutes Civil Procedure Rules (cap 21 Sub Leg) order LIII Advocates Mr Gautama for the Applicant Mr Gikandi for the Respondent |
| History Advocates: | Both Parties Represented |
| Case Outcome: | Objection Disallowed. |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
MISCELLANEOUS CIVIL APPLICATION 67 OF 1992
MUNICIPAL COUNCIL OF MOMBASA…………………………………………..APPLICANT
VERSUS
ALIBHAI KANJI & OTHERS……………………………………………...…….RESPONDENT
EX - PARTE LADHA
RULING
There is here an application for judicial review seeking orders of certiorari and mandamus under order LIII of the Civil Procedure Rules.
Basically, it is alleged that the property No 302 section V/MN registered in the name of one Alibhai Kanji should not have been sold by an auctioneer who purported to execute a decree issued Magistrate’s Court because the purported service of the summons to enter appearance in the case had not been effected in the manner prescribed by the Rules, and the decree therefore void. It is pertinent to recall that the suit had been filed by the Municipal Council of Mombasa to recover the outstanding arrears of rates in respect of the same plot.
The applicants are the sons of the late Alibhai Kanji. In paragraph 8(i) of their statement they averred as follows:
“That the summons was served allegedly on the late Alibhai Kanji who died on the 2nd of March 1994 at his residence on the 16th of August 1991 when he purportedly refused to sign for the service of the summons.”
In some ways the issues raised by this application are similar to the High Court Misc Civil Case No 69 of 1990 where it was held that where it is proved that there was a defective or no service of the process but which followed by an “unseemly hurried court proceedings and orders”, the High Court would invoke its jurisdiction of the judicial review and make orders of certiorari, mandamus or prohibition in favour of the aggrieved party. But one has to hasten to say here that the Court’s duty on such an application as the instant one will only confine itself to the question of legality ie whether the inferior court or tribunal committed an error of law or committed a breach of natural justice or reached a decision which no reasonable tribunal could have reached.
It must always be remembered that the remedy of certiorari is discretionary; and is available to the High Court for the purpose of ensuring that the lower court do not abuse or exceed their powers and thereby make irregular and oppressive orders.
It is obvious that if there was no requisite service of summons but instead a deliberately false return by process server, the subsequent proceedings which presupposed that there was proper service must have been a nullity: the orders which resulted from such proceedings would be indefensible and have to be quashed. Mr Gikandi has raised a preliminary point whose thrust is that the applicant did not issue notice nor did he obtain the leave of court both of which are mandatory requirements under the Rules before the Rules in LN 164 of 1992 purportedly abolished them.
It is common ground that the original court file and record are irretrievably lost and thus, Mr Gikandi’s arguments seeking to discredit the applicant’s advocates can only be of a conjectural nature. But in reply Mr Gautama contended that there was no basis for the submission made by Mr Gikandi. It is true that Mr Gikandi did not point out the basis for his submission. I have even been shown a copy of the order for leave. On what basis then can the preliminary objection be upheld? Recently my attention was drawn to the case of Kenneth Stanley Njindo Matiba v Attorney General HCCC Application No 790 of 1993 in which a bench of three judges refused to strike out an application for certiorari for want of notice and/or leave. They concluded that if leave had been sought it would almost invariably have been granted. Likewise, I hold that if the requisite leave had, by some inadvertence, not been sought, then I should give it.
For reasons which I have adverted to it is clear that the application itself relates to fundamental issues which must be determined on merits.
I disallow the objection. I view it as of a time wasting tactic. I give costs to the applicant.
Dated and Delivered at Mombasa this 23rd day of June 1994.
I.C.C.WAMBILYANGAH
JUDGE
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