Owiti v Director Of Pensions [2022] KEHC 2962 (KLR)

Owiti v Director Of Pensions (Judicial Review Miscellaneous Application 110 of 2021) [2022] KEHC 2962 (KLR) (Judicial Review) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 2962 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Miscellaneous Application 110 of 2021

AK Ndung'u, J

June 9, 2022

Between

Victor Juma Owiti

Applicant

and

Director Of Pensions

Respondent

Ruling

1. The application before court is dated 8th October, 2021. It seeks orders:i.Spentii.That the Honourable Court be pleased to enlarge time for the filing of substantive application in respect of Leave granted vide the order dated 19th July 2021 to enable the Applicant file the substantive application.iii.That [in the alternative, and without prejudice to prayer 2 above,] the Honourable Court be pleased to deem the draft substantive application annexed to the Affidavit in support hereof as having been duly filed within time

2. It is premised on 5 grounds viz:i.That on the said 8th October 2021, I attended court with the mistaken belief that JR Misc. EIIO of 2021 was coming for mention for directions on the Application for Leave only to learn from the learned Judge that the prayer for Leave therein had already been granted on the 19th July 2021. ii.That the learned Judge had in granting the said Leave ex parte as prayed directed that the substantive Application be filed within 14 days from the said 19th July 2021. iii.That as a result of the mistaken belief, and the lack of proper notice on the orders of 19th July 2021, it is necessary to have the time enlarged for the filing of the said substantive application as the fourteen (14) days allowed had elapsed.iv.That neither the Respondent nor the Interested Party would suffer any prejudice should the Honorable Court enlarge time for the filing, or were the Honorable Court deem the draft substantive application to have been duly filed within time.v.That it is in the interest of substantive justice for this Honorable Court to allow this application, and to enlarge time for the filing of, and or deem the substantive application to have been duly filed within time.

3. The application is further supported by the affidavit of Victor Juma Owiti (hereinafter, the applicant sworn on 8th October, 2021.

4. No response was filed to the application.

5. I have considered the application. I note that the ex parte chamber summons was filed at the height of the Covid pandemic. I take judicial notice of the communication and filing challenges that affected not only the court users but the court itself.

6. The power to enlarge time is discretionary. Like all discretionary powers it must be exercised judiciously.

7. Having considered the explanation given and noting the nature of rights sought to be enforced and inclined to promote substantive justice in the matter, I am persuaded that the orders sought are merited.

8. I accordingly allow the application dated 8th October, 2021 in terms of prayer 2 and make the following directions:1. The substantive motion be taken out and served within the next 14 days.2. Responses be filed within 14 days of service.3. Mention on 6th July, 2022 for directions on hearing.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9THDAY OF JUNE 2022. ……………………………………..A.K. NDUNGUJUDGE