1.Before this court for determination is a notice of preliminary objection dated October 17, 2022 filed by the respondents in opposition to the notice of motion application dated March 2, 2021 and filed on March 17, 2021 on the grounds that: -1.That the exparte applicants’ application offends the mandatory provisions of Order 53 Rule 3 (1) of the Civil Procedure Rules which provides as hereunder:-2.That the civil procedure rules 2010 order 53 is very clear on the timelines within which to file the substantive notice of motion.The order expressly provides for 21 days within which to file a substantive notice of motion.3.That the applicants having been granted leave to file the substantive motion on February 19, 2021 filed the substantive notice of motion on March 17, 2021; after 26 days thus outside the timeframe required under Order 53 Rule 3(1).4.That the applicants’ notice of motion application dated March 2, 20215.That the applicants failed to join the Attorney General as a party in this suit contrary to Article 156 of the Constitution thus rendering the suit fatally defective.
2.This court directed that the notice of preliminary objection be canvassed by way of written submissions. The respondents filed written submissions dated November 7, 2022. The respondents raised two issues for determination which is as below;i.Whether the Applicants’ application was filed within time.ii.Whether failure to join the Attorney General renders the suit fatally defective.
3.On the first issue, the respondents submitted that the ex- parte applicants were granted leave to file the substantive motion on February 19, 2021. They filed the substantive Notice of Motion on March 17, 2021; after 26 days thus outside the time frame required under Order 53 Rule 3(1). The respondents further submitted that Order 53 of the Civil Procedure Rules is very clear on the timelines within which to file the substantive notice of motion and that the Order expressly provides for 21 days.
4.The respondents submitted that the applicants’ application offends Sections 8 and 9 of the Law Reform Act and also contravenes Order 53 Rule 3 of the Civil Procedure Rules. That in construing a statutory provision the first and the foremost rule of construction is that of literal construction. All that the court has to see at the very outset is, what does the provision say? If the provision is unambiguous and if from that provision the legislative intent is clear, the other rules of construction of statutes need not be called into aid. They are called into aid only when the legislative intention is not clear. But the courts would not be justified in so straining the language of the statutory provision as to ascribe the meaning which cannot be warranted by the words employed by the legislature.
6.The respondents submitted that a party cannot decide to disobey a court order and then approach the court like nothing happened and pray for orders which they are presumed to have abandoned. Further that non-compliance of a court order is not a mere technicality and cannot be cured by relying on Article 159 of the Constitution. The respondents relied on the case of Republic v Public Procurement Administrative Review Board & Another; Mer Security & Communications System Ltd/Megason Electronics & Control 1978 (JV) & Another (Interested Parties); Exparte Magal Security Systems Ltd/Firefox Kenya Limited (JV)  eKLR where Justice Mativo (as he then was) upheld the Preliminary objection filed by the Interested party. The court held that; - “Article 159 (2) (d) of the constitution of Kenya 2010 enjoins courts to determine cases without undue regard to technicalities. I must however point out that Article 159 of the Constitution is not a panacea for all problems. It is not lost to this court that the provisions of Order 53 Rule 3 (1) of the Civil Procedure Rules, 2010 are couched in Mandatory terms. The applicant cannot seek refuge under Article 159 (2) (d) of the constitution under the present circumstances in view of the mandatory and express provisions cited above. 59. Additionally, the ex parte applicant disobeyed an express court order. Article 48 of the Constitution cannot be used as a shield where a party flouts a court order. Above all, Access to Justice cuts both sides. The Respondents and the Interested Parties are equally entitled to access justice. Access to Justice is equally flouted when a Respondent is drugged to court unnecessarily. 61. In view of my conclusions herein above, and my finding that section 9 (3) of the Law Reform Act and Order 53 Rule 3(1) of the Civil Procedure Rules, 2010 are couched in mandatory terms, and, also, my finding that Article 159 (2) (d) of the Constitution cannot be of help to the ex parte applicant under the circumstances of this suit, I find and hold that the preliminary objection succeeds. 63. Consequently, the ex parte applicant's Chamber summons dated June 8, 2018 is hereby dismissed. Further, the ex parte applicant's Notice of Motion dated May 22, 2018 is struck off for being incompetent and or for being improperly on record and for having been filed out of time. 64. Further, the Notice of Preliminary Objection filed by the second Interested Party dated June 8, 2018 is hereby allowed.”
7.On the second issue the respondents submitted that the applicants’ failed to join the Attorney General as a party in this suit thus rendering the suit fatally defective. Further, that the Attorney General should have been sued on behalf of the Respondents as envisaged under Article 156 of the Constitution as read together with the Office of the Attorney General Act. They relied on the case of Maina Gitonga versus Catherine Nyawira Maina & Another  eKLR, where the honourable Judge held that; “The other issue is whether failure to enjoin the Attorney General renders this application fatally defective. Wendoh J in the already cited case of Republic vs Attorney General & Another was of the view that failure to make the Attorney General one of the Respondents in an application like the one before me would be fatally defective.” I find that it was necessary for the Petitioner to name the Attorney General in these proceedings (in addition to naming the public body in question). In any event, Article 156 (2) (b) of the Constitution of the Kenya 2010 provides that “the Attorney General shall represent the national Government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings” while Section 5 (1) (i) of the Office of the Attorney General Act clearly provides for the functions of the office of the Attorney General among them „representing the national government in all civil and constitutional matters in accordance with the Government Proceedings Act. In view of my findings above, I find that the Petition as drawn is defective.”
8.The ex-parte applicants filed written submissions dated January 18, 2023.Two issues were raised for determination which is whether the notice of motion application dated March 2, 2021 is fatally defective and whether failure to join the attorney general renders the suit fatally defective.
11.On the second issue, the exparte applicants submitted that failure to enjoin the attorney general is curable by amendment.The exparte applicants relied on the case of Republic Exparte the Minister for Finance & The Commissioner of Insurance as Licensing and Regulating Officers versus Charles Lutta Kasamani T/A Kasamani & Co. Advocate & Another, Civil Appeal (Application) No. Nai. 281 of 2005 and Eliud Buku Thuku versus Paul Kariuki Mwangi & 2 Others  eKLR.
12.I have carefully analysed and considered the notice of preliminary objection and the written submissions filed by the parties. The issue for determination is whether the preliminary objection ought to be upheld pursuant to the grounds raised therein.
13.Order 53 Rule 3 (1) of the Civil Procedure Rules, provides as follows:- “When leave has been granted to apply for an order of Mandamus, prohibition or Certiorari, the application shall be made within twenty-one days by notice of motion to the high court, and there shall, unless the judge granting leave otherwise directed , be at least eight clear days between service of the notice of motion and the day named therein for the hearing.”
14.From the above provision of the law, the substantive application ought to be made within twenty-one days from the date when leave was granted. In this case, this court granted the ex-parte applicants’ leave to file and serve the substantive notice of motion within 21 days on February 19, 2021.From the record, nothing transpired until December 6, 2021 when the deputy registrar slated the matter for a mention date on February 15, 2022 with directions that a mention notice to issue. The ex-parte applicants’ filed a substantive notice of motion application dated March 2, 2021 on March 17, 2021.The ex-parte applicants’ ought to have filed and served the substantive motion at least by the March 12, 2021.Instead, they filed the same a week later on March 17, 2021.The submissions by the exparte applicants that the judiciary efiling system was down is not persuasive.They have not annexed the email communication to confirm that indeed the assessment was done on the March 16, 2021 and filing and stamping of the substantive notice of motion on March 17, 2021.It is upon the exparte applicants to show that indeed the court’s registry is to blame as opposed to making a general statement.
15.The orders of my brother Kullow J issued on February 19, 2021 were express and more particularly order 4 which was to the effect that the applicants file and serve the application within 21 days. A perusal of the records also indicates that service of the substantive notice of motion was effected more than a year later on June 16, 2022 as can be deduced from the affidavit of service sworn on June 20, 2022.
16.It has been stated over and over again that where the court has issued orders and or given directions the same ought to be strictly complied with failure to which the orders lapse. I am of the view that the applicants are casual in their approach to this court. They disobeyed court directions and instead of seeking enlargement of time to file the substantive motion, they went ahead, filed and served the substantive motion without any regard to this court’s previous orders. In the case of United Housing Estate Limited versus Nyals (Kenya) Ltd Civil Application No. Nairobi 84 of 1996 where the Court of Appeal pronounced itself as follows:
17.On the second issue, the respondents contended that failure to join the attorney general as a party in the suit is contrary to Article 156 of the Constitution which renders the suit fatally defective. Order 1 Rule 3 of the Civil Procedure Rules provides as follows as who is may be joined in a suit as a defendant or respondent:
18.The duties of the Attorney General are set out under Article 156 (4) of the Constitution as follows:
19.In the instant case, the attorney general is the legal representative of the respondent in court proceedings. The attorney general is usually added as a party, in addition to the principal party it represents, for purposes of notification of civil proceedings affecting the national government, and for purposes of service of pleadings and court documents in this regard.
21.Having stated the above and as far as these proceedings are concerned, they are defective to the extent that the attorney general has not been made a party to. However, the same does not go into the substance of the application and is not fatal. I place reliance in the case of Republic Ex Parte the Minister for Finance & The Commissioner of Insurance as Licensing and Regulating Officers versus Charles Lutta Kasamani t/a Kasamani & Co. Advocate & Another Civil Appeal (Application) No. Nai. 281 of 2005 where the court of appeal stated as follows:
22.Arising from the above, I do find merit in the notice of preliminary objection dated October 17, 2022 in terms of ground 1. The substantive notice of motion dated March 2, 2021 and filed in court on March 17, 2021 is hereby dismissed. Each party to bear its own costs. It is so ordered.