Republic v Director of Public Prosecution & 3 others; Manku (Exparte Applicant) [2023] KEHC 24959 (KLR)

Republic v Director of Public Prosecution & 3 others; Manku (Exparte Applicant) (Miscellaneous Civil Application E049 of 2023) [2023] KEHC 24959 (KLR) (Judicial Review) (27 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24959 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Miscellaneous Civil Application E049 of 2023

JM Chigiti, J

October 27, 2023

Between

Republic

Applicant

and

Director of Public Prosecution

1st Respondent

Inspector General of Police

2nd Respondent

Attorney General

3rd Respondent

The Chief Magistrates Court, Milimani Criminal Court Division

4th Respondent

and

Parminder Singh Manku

Exparte Applicant

Judgment

1. By a Chamber Summon dated 13th April, 2023 ‑ brought under Section 9 of the Fair Administrative Action Act; Sections 8 and 9 of the Law Reform Act (Chapter 26 the Laws of Kenya); Order 53, Rule 1, 2, 3 & 4 of the Civil Procedure (Revised (sic) Rules) ‑ the ex-parte applicant sought for leave to inter alia commence judicial review proceedings seeking prerogative orders of certiorari and prohibition.

2. The Applicant filed the Chamber Summon application and Substantive Notice of Motion application on 13th April, 2023. On 14th April, 2023 the ex-parte applicant was granted leave by this court to, inter alia, commence judicial review proceedings.

3. The upshot of the foregoing is that the Notice of Motion is filed without leave.

4. Order 53, Rule 3 of the Civil Procedure Rules provides for application to be by notice of motion. It states that;“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.” (Emphasis Added).

5. Additionally, Order 53, Rule 1 of the Civil Procedure Rules, provides that applications for mandamus, prohibition, and certiorari to be made only with leave. It states,“1. (1)No application for an order of mandamus, prohibition, or certiorari shall be made unless leave therefor has been granted in accordance with this rule.” (Emphasis Added)

6. Clearly, Order 53 Rule 1 and 3 of the Civil Procedure Rules are couched in mandatory terms. Therefore, a substantive notice of motion application, for prerogative orders, can only be properly filed before this court upon the granting of leave. Also, the substantive application should be filed within twenty-one (21) days. However, the court, in some instances, may grant extension of time to file the substantive application out of time.

7. It then follows that the Notice of Motion dated 13th April, 2023 is fatally defective and incompetent, for being filed in absence of leave. The same is struck out with no orders as to cost.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 27TH OCTOBER 2023. ........................JOHN CHIGITI (SC)JUDGE