James Samuel Mburu v Attorney General [2017] KEHC 6047 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  489 OF 2016

IN THE MATER OF AN APPLICATION BY JAMES SAMUEL MBURU

FOR LEAVE TO APPLY FOR AN ORDER OF MANDAMUS

AND

IN THE MATTER OF THE ATTORNEY GENERAL

AND

IN THE MATTER OF THE PRINCIPAL SECRETARY MINISTRY OF FINANCE AND NATIONAL TREASURY

AND

IN THE MATTER OF GOVERNMENT PROCEEDINGS ACT, CAP 40 LAWS OF KENYA

BETWEEN

JAMES SAMUEL MBURU....................................................APPLICANT

VERSUS

ATTORNEY GENERAL.....................................................RESPONDENT

JUDGMENT

1. By an application dated  8th November  2016   the applicant  James Samuel Mburu seeks from this court the following orders:

a. judicial Review Orders  of Mandamus  to issue jointly  and severally  directed  to the respondent the Attorney General and  the Principal Secretary, Ministry  of Finance  and  National Treasury, compelling  them jointly  and severally  to pay to the applicant  the sum of the shs  472,575 being the decretal sum owed to him in Nairobi CM CC  No. 13421 of  2003  together with  interest  thereon  at 12% per annum  from 1st January  2001  to 1st  January  2007  and  taxed costs of the suit pursuant  to the certificate of order issued  on 9th February  2016

b. That in the event  of failure to pay the  sum of  Kenya shillings  472,575, the persons  occupying  the position  of  the Attorney  General   and the Principal Secretary  of the Ministry  of Finance  and the National  Treasury, be committed  to jail  in contempt  of the orders  issued herein.

c. That the court grants him leave to file  the verifying   affidavit  attached  herewith  and the same be  deemed  to have  been properly  filed and that it be  admitted as part of the court record.

d. That costs of the application be paid by the respondents.

2. The application which  was  filed pursuant  to leave of  court  granted on  13th October  2016,  was lodged  in court on 10th November within 29 days  from the date when  the leave  was granted.

3. Order 53 Rule 3(1)of the Civil Procedure Rules clearly  stipulate that where leave is granted to apply for Judicial Review orders of mandamus, certiorari or prohibition, the substantive motion shall be  filed  within  21 days  from the date of  such leave.

4. It follows that unless the court at the time  of  granting  such leave  gives the applicant  any other  shorter  term within which  the main  motion is to be lodged, it  is upon the applicant to ensure  that the substantive  motion is filed within  21 days  from the date of the order  for leave  since that is  a statutory  time frame  which need not  be repeated  by the court   when  making  the order granting  leave.

5. In this case, it is clear that  the applicant  after  obtaining  the  order for  leave on the chamber  summons dated  13th October   2016 went to slumber and only managed  to file the  substantive  motion on 10th November 2016.

6. Judicial Review matters are time bound and unless with leave of court such time stipulated by the Rules is enlarged, the motion as currently filed is incompetent and amenable for striking out.

7. It must be emphasized that the provisions of Article  159 of  the Constitution cannot  come to the  aid  of  the applicant  who expressly came to court under  the provisions of Order  53  Rules  3 and 4 of the Civil Procedure  Rules  which stipulate  the time frame within which the  substantive motion ought  to be filed.

8. I am fortified on this issue by several decisions of this court and of the Court of Appeal. In Wilson Osolo vs John Ojiabo Ochola  and the Attorney General, CA No. 6/1995  Nairobi the Court of Appeal while considering  Order 53 Rule (3) (1) of the Civil  Procedure  Rules  held:

“It  can readily  be seen  that  Order  53  Rule  (2) as it then stood, is  derived  verbatim from Section  9(3) of the Law Reform Act. Whilst  the time limited for doing something  under the Civil Procedure Rules  can be extended  by an application under order  49 of the Civil  Procedure Rules, that procedure cannot be availed  for the  extension  of time limited by statute, in this  case, the Law Reform Act.”

9. The same court further stated:

“ It  was  a mandatory requirement  of Order  53  Rule 3(1) of the  Civil Procedure  Rules  then and it is now again so that  the notice of  motion must be  filed within  21 days of grant  of  such leave.  No such notice of motion  having been apparently   filed within 21 days of 15th February, 1982, there was no proper application before the superior court.  This period of 21  days  could have  been  extended  by a reasonable  period  had there  been an  application under Order 49 of the Civil Procedure  Rules.

10. In this case, the order of leave was made on 13th October 2016.  The substantive motion therefore ought to have been made on or before 3rd November 2016 which was the 21st day.  Instead, it was filed on 10th November 2016. No application for enlargement of time under Order 50 Rule 6 of the Civil Procedure Rules was made for consideration.

11. Odunga J in Republic vs Cabinet Secretary, Information  Communication & Technology& Another Exparte  Celestine Okuta & Others [2016] e KLR was faced with a similar   situation as the one  herein  where the applicant  failed to file  the substantive  motion within the  time frame  stipulated  in the order leave.  In striking out the notice of motion, the learned judge held, and I agree:

“In my view, court orders are serious decisions that can only be excused  based on material  placed before  the court   and  cannot be  ignored  on the ground that  they are  technicalities.

In my view, the law is that technicalities  of procedure  ought not  to automatically lead to  termination of proceedings  and that the court  must have the power to save the same where material exist  before the  court to  justify  non compliance.  However, where there is none and where in fact the applicant adopts an incorrect position of the law to justify his inaction, such omission cannot be excused.”

12. The learned judge was echoing the Court of Appeal decision inJohn Ongeri Mariaria & 2 others   vs Paul Matundura Civil Application No.  Nairobi 301 of 2003[2004] 2 EA 163 where the Court held:

“Legal business can no longer be handled in such sloppy and careless manner.  Some clients must learn at their costs that the consequences of careless and leisurely approach to work must fall on their shoulders…..  Whereas  it is true that  the court has  unfettered  discretion, like  all  judicial discretion must be  exercised upon reason not capriciously or sympathy alone…..justice  must look both ways  as the rules  of procedure  are meant  to regulate  administration of justice and they are  not meant to assist the indolent.”

13. Counsel for the applicant argued the motion as if it was validly on record.  Article 159(2) (c ) of the Constitution  stipulates  that justice shall  not be delayed  and therefore  filing of  the motion  out of time  without leave  of court cannot be a procedural technicality  curable  under Article  159 2 (d) of the Constitution.

14. For  the above  reasons, I decline   to delve  into the  merits of  the  notice of motion   for orders of mandamus  which  was  strenuously  opposed by the  respondent’s counsel and  proceed  to strike out  this motion  dated 8th November  2016  and  filed in court   on 10th November  2016 for being  incompetent.

15. As the mistake was that of counsel for the applicant who ought  to know statutory timelines, I will spare the applicant the penalty  of costs and order that each party  bear  their own costs  of the incompetent motion.

Dated, signed and delivered in open court at Nairobi this 27th day of February 2017.

R. E. ABURILI

JUDGE