Paresh Kamlakar Naik & Nassim Mohamedali Jamal v Cabinet Secretary Ministry of Interior and Co-ordination of National Government, Director of Immigration Services & Attorney General [2017] KEHC 2760 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  284 OF 2016

IN THE MATTER OF AN APPLICATION BY PARESH KAMLAKAH NAIK AND NASSIM MOHAMEDALI JAMAL FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION.

AND

IN THE MATTER OF  ARTICLE   15(1)  OF THE CONSTITUTION OF  KENYA  AND  SECTION 11 OF THE KENYA  CITIZENSHIP AND  IMMIGRATION ACT  2011  AS  READ WITH   ARTICLE  47

AND

IN THE MATTER OF ARTICLES 35(1) AND (2) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF DECISION BY THE DIRECTOR OF IMMIGRATION SERVICE COMMUNICATED BY A LETTER DATED   21ST APRIL 2016

AND

IN THE MATTER OF DECISION BY THE DIRECTOR OF IMMIGRATION SERVICE COMMUNICATED BY A LETTER DATED   10TH MAY 2016

AND

IN THE MATTER OF BREACHES OF THE RULES OF NATURAL JUSTICE.

BETWEEN

PARESH KAMLAKAR NAIK………...............................……….1ST APPLICANT

NASSIM MOHAMEDALI JAMAL…......................................….2ND APPLICANT

VERSUS

THE CABINET SECRETARY MINISTRY INTERIOR AND CO-ORDINATION OF

NATIONAL GOVERNMENT.....................................................1ST RESPONDENT

THE DIRECTOR OF IMMIGRATION SERVICES...................2ND RESPONDENT

THE HONOURABLE ATTORNEY GENERAL........................3RD RESPONDENT

JUDGMENT

1. On 29th June 2016, Honourable Odunga J granted  to the exparte  applicants Paresh  Kamlakar  Naik and  Nassim  Mohammedali  Jamal leave to institute Judicial Review proceedings  challenging the  respondent’s  decisions  of  21st  April 2016   and  10th May  2016.

2. Vide the notice of motion dated  11th July  2016  and filed in court  on 12th July  2016, the  exparte applicants  sought for  three orders  of mandamus, four orders  of certiorari  and  one prayer for  prohibition  against the  respondents  as contained  in the notice of motion. They also sought for costs of the application.

3. Before delving  into what the exparte applicant’s  case  is all about  and  what the  respondent’s  contentions are, I note that albeit the  exparte  applicant  was  on  29th June  2016   granted  leave to file  the substantive  notice  of motion within 14 days  of the order of leave, and  despite  the fact that  the  motion was  “filed” on 12th July  2016  which  was  within 14 days  of the  order for leave, no court filing fees or  evidence  of payment  of court  filing fees  of kshs  48,470  as assessed  was  ever paid into court or exhibited.

4. The court record shows that on 12th July 2016 the notice of motion was received in the Judicial Review Division Sub registry of the High Court, Nairobi.  However, the receipt for payment accompanying the notice of motion   is that of 29th June 2016    for   shs 2745 being No. 7604355 and no other.

5. The latter  receipt from the court  records, is for the filing of the chamber summons  dated  28th June  2016 and filed  on   29th June  2016  as assessed  then.

6. Regrettably, the court filing fees receipt that is accompanying the chamber summons is the one dated 30th June 2016 for kshs 295/- which is No. 7604276.

7. In other words, there was shifting of court fees receipts but no receipt is available for the filing of the substantive Notice of Motion and despite all the time taken preparing for  the hearing, hearing and perusing   all the documents  in this  file,  the court finds  that infact, the substantive notice of motion was “ not filed” as directed by Honourable Odunga  J on  29th June  2016.

8. I say “not filed”  because of pleadings  or documents  in court is evidenced not only  by the  ‘received’ date stamp but by the  payment of court fees  which is required  by law  and  unless  a party  applies for exemption as paupers and  or  are exempted  from payment of court fees like in the case of Government Ministries and County Governments ,  failure to  pay court  filing fees renders the pleadings or documents requiring  payment  before filing  incompetent  and  amenable  for striking out.

9. In this case, I have not seen any order exempting  the  exparte applicants from paying court filing fees of  shs  48,470 as assessed, for the filing  of the substantive  notice of  motion.

10. The exparte applicants cannot hide under the principle espoused in Article159 of the Constitution that justice shall be administered without undue regard to procedural technicalities.  Failure  to pay court  filing fees is not a procedural  technicality  as it goes to the substance  of the main pleading  which cannot  be deemed  to be  filed without  court filing fees  being paid  and  an acknowledgment receipt  issued  to that effect unless exempted by law or by the court on application.

11. In addition, Article  48 of  the  Constitution on access to justice  is clear that the  state shall ensure access to  justice  for  all persons and, if  any fees is   required, it shall be  reasonable  and  shall not impede access to justice.

12. In this case, the exparte applicants have not explained why they did not pay court filing fees as required by law.  In addition, they have not claimed that the required court filing fees is unreasonable or not due.  They neither sought for exemptions from paying the required court fees nor claimed that no court fees was required for the filing of the substantive notice of motion.

13. I hold the view that a party cannot unilaterally choose to deny the government and therefore the people of Kenya who deserve government services, revenue.

14. It was upon the exparte applicant to pay court filing fees on the lodgment of the substantive notice of   motion or at a later stage, which would have cured the default.

15. The issue here is that court fees  was never paid for  the  filing of the  substantive notice of motion, not that  it  was paid  late or that what  was paid   was insufficient.

16. This court is alive to the provisions of Section 96 of the Civil Procedure Act which stipulates that:

“ where the whole or  any part of   any fees  prescribed  for any document  by the law  for the  time in force  relating to court fees has  not been  paid, the  court may  in its  discretion, at  any stage, allow  the person  by whom such fees is payable to pay the whole or part, as the case may be, of the  fees  and  upon  such payment   the document  in respect  of which such  fees is  payable shall  have the same force and   effect  as if such fee had been  paid in the first instance.”

17. In the instant  case,  considering  that the  filed  documents   had an  assessed  court fees  but the receipt  accompanying  it has a figure of court fees for  a different document  already  filed is clear indication that the  applicant’s counsel filing the  document knew  or ought to  have  know that the  required  court fees was not paid.

18. The section 96 of the Civil Procedure Act reproduced above is couched in discretionary terms and the court, before exercising its discretion in favour of a party must do so on some defined principles. In this case there is no indication of inadvertence and neither did the applicants bother to ensure that before proceeding with the hearing of the Notice of motion, they had settled the issue of court filing fees. In my view, they must have assumed that the court would not counter check to establish whether or not court filing fees was paid for the notice of motion.

19. Accordingly, I do not  find any ground upon which I can  exercise my discretion under Section 96  of  the  Civil Procedure Act  to order for  payment of court fees  which  was not paid in the first instance and there being no request for late payment.

20 I find that there  was  a deliberate  move by the applicants and or  their advocates  in collusion with the court  registry staff  not to pay the requisite court fees for filing of the substantive  notice  of motion.

21. This court cannot be complicit in such misdeeds. In the  premises , I have no option  but to declare  the notice of motion dated  11th July 2016 and filed in court on  12th July 2016  incompetently  filed.  I proceed and strike it out.

22. Each party to bear their own costs if the incompetent notice of motion as struck out.

Dated, signed and delivered in open court at Nairobi this 18th day of September, 2017.

R.E. ABURILI

JUDGE