Paul Mwaniki v National Hospital Insurance Fund Board of Management [2017] KEHC 4297 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  455 OF 2016

IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI & PROHIBITION

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THE NATIONAL HOSPITAL INSURANCE FUND ACT, CAP 255 OF THE LAWS OF KENYA.

AND

IN THE MATTER OF THE CRIMINAL PROCEDURE   CODE, CAP 75 OF THE LAWS OF KENYA

BETWEEN

PAUL MWANIKI………...………………....……………….………..APPLICANT

VERSUS

THE NATIONAL HOSPITAL INSURANCE FUND

BOARD OF MANAGEMENT…………………........................RESPONDENT

JUDGMENT

1. This matter  proceeded to hearing on  21st March  2017 interpartes after being  adjourned  severally  at the instant of the  respondent  and  all along,  all parties assumed that leave to institute Judicial Review  proceedings was granted.

2. However, as I read this file with a view to writing the judgment, I discovered that despite the applicant pushing for a hearing   of the notice of motion dated 3rd October 2016,  there is no  order granting  leave.

3. Section 8  and 9  of the Law Reform Act Cap 26  Laws of Kenya  and  Order  53   of the Civil  Procedure  Rules  are emphatic  that no order of certiorari, prohibition and mandamus  shall be granted unless the  court grants  leave  to institute   proceedings.

4. In the present  case, the applicant did  file an  application for leave  dated  27th  September  2016  which  application  was  considered on 28th September  2016 under certificate  of urgency  and  the court directed the applicant  to serve  the  respondent for  interpartes   consideration  for directions  on  4th October  2016.

5. The court also directed the applicant to file future pleadings in reader friendly pleadings. However, the court never granted  any leave  or stay on that  day and on 4th October 2016 when the matter came up for  interpartes  consideration of the application for  leave,  the  court notes that the exparte  applicant had instead  filed a substantive  notice of motion  albeit  counsel for the applicant, Mr  Akusala  intimated to court that he had not managed to serve the  respondent  because  he had only  received  some documents  the previous  day and that  he  had  succeeded  getting  a deferral  of the plea  taking for the  exparte  applicant in the criminal case preferred against him to  12th October  2016.

6. At that moment, the court was made to believe that leave had been granted so the applicant’s counsel was directed that the substantive motion which had been  filed that   morning to be  heard on  10th October  2016  and the  applicant   was to serve  the respondent  by close of  business.

7. Suffice to say that  it  was the  exparte  applicant’s  duty to ensure that  before filing  the  substantive motion,  he obtains  leave first  and  even extracts  the order for leave  which would  accompany the notice of motion to be served upon the respondent.

8. I reiterate  that there is  no order for leave  and  despite the  exparte  applicant  making  the  court believe  that there  was   such leave hence the long process of writing  rulings on stay  to allow the fast   tracking of the hearing of  this matter, the  court is  unable  to find any  order  for leave.

9. It was encumbent  upon the applicant to ensure that he obtains  leave of court  before instituting   the  notice  of motion dated  3rd October  2016  on 4th October, 2016.

10. There being no leave to institute these proceedings, the court’s precious judicial time  was wasted  and the parties  too wasted their time arguing on the merits of the Judicial Review  application.

11. For that  reason alone, I find that  the court  is unable  to render  a judgment  based on merits  of an application that  was filed   prematurely and  without leave of court as  required  by law.

12. Accordingly, I proceed to strike out the notice of motion   dated 3rd October   2016 as being incompetently filed.

13. As  the  chamber  summons  dated  27th September  2016  was never  canvassed, I would not  strike out  that application  which remains   unprosecuted  and  it is  now upon the  applicant  to move the court  if he still  desires, to consider that application on its merits.  I make no orders as to costs.

Orders accordingly.

Dated, singed and delivered in open court at Nairobi this 16th May 2017.

R.E. ABURILI

JUDGE

In the presence of:

Miss Maitai for Respondent

N/A for applicant

CA: George