Republic v Attorney General & others Ex-Parte Gitonga Wambugu Kariuki [2018] KEELC 1479 (KLR)
The bottom line
#Kenya's High Court refused to strike out a judicial review application, holding the constitutional right to be heard outweighs procedural technicalities.
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 Notice of Motion dated the 12th August, 2013 should be struck out on the preliminary objection dated 27th September, 2013
Key legal issues
#Whether the preliminary objection striking out the application of 12th August 2013 for want of privity, locus standi and jurisdiction was sustainable
The preliminary objection was disallowed; the interested parties' application should be heard on its merits.
Applying Mukhisa Biscuit and the striking-out jurisprudence in Ramji Megji Gudka and DT Dobie, and noting that the interested parties were seeking to exercise their constitutional right to be heard after their advocate failed to attend court, the court held that the ex parte applicant had not demonstrated prejudice. Article 159(2)(d) required justice to be administered without undue regard to procedural technicalities, overcoming the objection that the Law Reform Act and Order 53 do not permit reopening judicial review proceedings.
Legal principles established
#- The overriding objective in article 159(2)(d) of the Constitution cures procedural technicalities that would otherwise bar hearing of an application on its merits, including in judicial review proceedings
- A party's right to be heard is a constitutional right and a court should not strike out an application which raises issues deserving to be heard on the merits where no prejudice is demonstrated
Court orders
#- 1.The preliminary objection dated 27th September 2013 is disallowed as unmerited
- 2.The parties are directed to fix the application dated 12th August 2013 for hearing within 21 days from the date of the ruling
- 3.Costs will be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction under the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules; article 159(2)(d) of the Constitution invoked on procedural technicalities
Relief refused
#Striking out of the Notice of Motion dated 12th August 2013 and punitive costs to the ex parte applicant
The court found the preliminary objection unmerited; the interested parties were seeking to be heard, a constitutional right, and no prejudice was demonstrated
Costs
Costs will be in the cause
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.
It is against the foregoing and in relying on the judicial authorities cited above, that I find the Preliminary objection is unmerited and will disallow it.
I direct the parties to fix the application dated the 12 th August 2013 for hearing within 21 days from the date hereof to enable the court make a final determination of the same. Costs will be in the cause
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct.
In our view, the power to strike out pleadings must be sparingly exercised. It can only be exercised in clearest of cases.
justice shall be administered without undue regard to procedural technicalities
Issues in the judgment
#The judgment does not state the case number, neutral citation or the names of the ex parte applicant and interested parties; the title and parties are reconstructed from the roles used.
The citation for Philip Chemowolo & Anor Vs Augustine Kubede appears in the judgment as '( 1892 – 88) KAR 103', an apparent typographical error for (1982-88).
The judgment describes article 159(2)(d) inconsistently, at one point stating courts should administer justice 'with undue regard to procedural technicalities', contrary to the constitutional text and the correct quotation elsewhere in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & others Ex-Parte Gitonga Wambugu Kariuki [2018] KEELC 1479 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1479/eng@2018-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.