Abercrombie & Kent Limited & another v Republic [1996] KECA 174 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that if you're unhappy with a judge granting judicial review permission, you must appeal directly rather than trying to have the case thrown out.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the second interested party's notice of motion seeking to strike out Oloololo's judicial review notice of motion and to set aside the ex parte leave was a competent procedure
- 2.Whether the learned Judge erred in refusing to strike out the notice of motion and set aside the leave granted to Oloololo
Key legal issues
#Availability of a procedure to strike out a judicial review notice of motion and set aside ex parte leave
The Court of Appeal doubted the availability of the 'strange procedure' of filing a notice of motion within a notice of motion to strike out the latter, and held the Judge was right to refuse to strike out Oloololo's motion.
Order 53 contains no provision for striking out a motion filed under it. A party aggrieved by an ex parte grant of leave has an express right of appeal as of right under Order 42 Rule 1(ee) against orders made under all provisions of Order 53. The second interested party did not exercise that right, choosing instead an unavailable procedure. While a judge may have inherent jurisdiction to set aside wrongly granted ex parte leave, the court declined to decide that question since the statute provides an appeal.
Effect of a wrongful ex parte grant of leave on the subsequent notice of motion
A wrongful ex parte grant of leave is not itself a ground for striking out the notice of motion; objections may be raised at the hearing of the motion.
The High Court Judge had held that even if the ex parte grant of leave was wrongful, that did not justify striking out the notice of motion or setting aside the leave, since those matters could be raised again at the hearing of the motion. The Court of Appeal agreed that he was probably right on that view, affirming the ruling below on that basis as well.
Legal principles established
#- A party aggrieved by an ex parte grant of leave to apply for judicial review has a right of appeal as of right, without leave, under Order 42 Rule 1(ee), and should pursue that remedy rather than a motion to strike out the notice of motion.
- Order 53 of the Civil Procedure Rules makes no provision for striking out a notice of motion filed thereunder.
- Even if an ex parte grant of leave is wrongful, that is not a ground for striking out the notice of motion; such matters may be raised at the hearing of the motion itself.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Civil Application No. 362 of 1994
- Jurisdiction invoked
- Right of appeal under Order 42 Rule 1(ee) of the Civil Procedure Rules from orders made under Order 53
Relief refused
#Setting aside the ex parte leave granted to Oloololo and striking out its notice of motion
The proper remedy was an appeal as of right under Order 42 Rule 1(ee), not a motion to strike out within the motion; Order 53 makes no provision for striking out a motion filed thereunder
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Under Order 42 Rule 1 (ee) the second interested party was entitled to appeal, as of right and without leave, against the ex parte grant of leave by the Judge.
Order 53 makes no provision for striking out a motion filed thereunder.
That being our view of the matter, we order that this appeal be and is hereby dismissed with costs.
Issues in the judgment
#The appellant group's name is spelled inconsistently within the judgment: the coram reads 'ILKEREKESHE SELF HELP GROUP' while the body reads 'Ilkarekeshe Self-Help Group'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abercrombie & Kent Limited & another v Republic [1996] KECA 174 (KLR)", Case Analysis (1996). Civil Appeal No. 195 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/174/eng@1996-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.