Florence Namachitu & another v Doris Wanyama [2021] KEELC 121 (KLR)
The bottom line
#The High Court in Bungoma dismissed an auctioneer's attempt to use judicial review to challenge a court hearing date, confirming registry listings cannot be reviewed.
What this practically means
#Executive summary
#Key legal issues
#Proper procedure for judicial review applications
The application was fatally defective as it was not brought by way of an application for leave under Order 53
The Court noted that judicial review proceedings are governed by Order 53 of the Civil Procedure Rules and must be commenced by an application for leave. The Applicant had instead invoked Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Rules, which is not a permissible route for judicial review. The Court therefore held the application could not stand in the form presented.
Amenability of registry listing decisions to judicial review
Decisions on listing of matters for hearing are not justiciable through judicial review
The Court observed that it was unclear whether the Applicant sought certiorari, prohibition or mandamus in respect of the fixing of a hearing date. It held that the listing of a matter by the Registry for hearing or mention is an administrative court function that cannot, by any stretch of imagination, be remedied through judicial review, as that would stretch the scope of judicial review too far.
Existence of a quashable decision
No ruling existed on 24th November 2021 that the Court could set aside
The Applicant sought to set aside an alleged ruling of 24th November 2021. The Court examined the trial court record and found that the only order made on that date was a registry order fixing the hearing of the application dated 15th November 2021 for 8th December 2021 with notice to serve. There being no substantive ruling, there was nothing to set aside.
Legal principles established
#- A judicial review application must be commenced by an application for leave under Order 53 of the Civil Procedure Rules and cannot be brought in any other manner
- The act of listing a matter by the Registry for hearing or mention is not amenable to judicial review
Court orders
#- 1.The Notice of Motion dated 9th December 2021 was dismissed with no orders as to costs
- Jurisdiction invoked
- Applicant invoked Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Rules purporting to bring a judicial review application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Florence Namachitu & another v Doris Wanyama [2021] KEELC 121 (KLR)", Case Analysis (2021). Bungoma Chief Magistrate Civil Case No. 85 of 2018 (pending appeal; Notice of Motion dated 9th December 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/121/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.