Republic v Advocates Disciplinary Committee; John Mokua (Acting on Behalf of Olopito Plot Owners Self Help Group) (Interested Party); Osoro (Exparte) [2023] KEHC 24099 (KLR)

Republic v Advocates Disciplinary Committee; John Mokua (Acting on Behalf of Olopito Plot Owners Self Help Group) (Interested Party); Osoro (Exparte) (Application E174 of 2021) [2023] KEHC 24099 (KLR) (Judicial Review) (27 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24099 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E174 of 2021

J Ngaah, J

October 27, 2023

Between

Republic

Applicant

and

Advocates Disciplinary Committee

Respondent

and

John Mokua (Acting on Behalf of Olopito Plot Owners Self Help Group)

Interested Party

and

Omwoyo Kennedy Osoro

Exparte

Judgment

1. On 22 December 2021, the applicant was granted leave to file a substantive motion for the judicial review order of certiorari to remove into this Honourable Court and quash the respondent’s decision dated 18 October 2021 and all consequential orders issued by Gladys Wamaitha, Eric Nyongesa and Anna C. Konuche in Advocates Disciplinary Tribunal/Committee Cause No. 123 of 2019 in the matter of Advocate Osoro Kennedy Omwoyo P.105/4699/2001.

2. Rather than file the substantive motion for judicial review, the applicant filed a motion seeking leave in the same terms as the chamber summons application that had earlier been granted. The motion is dated 5 January 2022 and the main prayer in the motion is couched as follows:1. That the ex-parte applicant be granted leave to apply for An Order Of Certiorari to remove into the High Court and quash the judgement dated 18th October 2021 and all consequential orders thereto issued by Gladys Wamaitha, Eric Nyongesa and Anna C. Konuche in advocates Disciplinary Tribunal/Committee Cause Number 123 of 2019 in the matter of Advocate Osoro Kennedy Omwoyo P.105/4699/2001. ” (Emphasis added).

3. The application is obviously contrary to Order 53. Rule 3 (1) of the Civil Procedure Rules which states that once leave has been granted what follows is the substantive motion which should be filed within 21 days.The rule reads as follows:3. (1)When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.

4. As things stand now, there is no motion for certiorari for which leave has been granted. None was filed either within the 21 days prescribed by the rules or at all.

5. There is, in effect, no suit for determination before this Honourable Court.

6. The purported notice of motion dated 5 January 2022 is a nullity and it is hereby struck out with costs to the respondent and interested party. It is so ordered.

SIGNED, DATED AND DELIVERED AT WAJIR ON 27 OCTOBER 2023NGAAH JAIRUSJUDGE