Republic v Registrar of Births & Deaths & another; Fidhow (Exparte) [2023] KEHC 23326 (KLR)

Republic v Registrar of Births & Deaths & another; Fidhow (Exparte) (Application E051 of 2023) [2023] KEHC 23326 (KLR) (Judicial Review) (13 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23326 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application E051 of 2023

J Ngaah, J

October 13, 2023

Between

Republic

Applicant

and

Registrar of Births & Deaths

1st Respondent

Attorney General

2nd Respondent

and

Hassan Aden Biblow Fidhow

Exparte

Judgment

1. The application before court is a motion dated May 23, 2023 expressed to be filed under Articles 12 and 14 of the Constitution; Section 9 of the Registration of Persons Act, cap 107; Section 22 of the Citizenship and Immigration ActNo 12 of 2011; sections 8 and 9 of the Law Reform Act, cap 26 and Order 53 Rules 3(1) and (3) of the Civil Procedure Rules.

2. The prayers in the motion have been framed as follows:1. That this Application be certified urgent for hearing ex parte on the first instance.2. That an Order of Mandamus to compel the Registrar of Births and Death to rectify the name of Applicant's mother as Nadhifo Hassan Wariyo in the Applicant's Birth Records.3. That an Order of Mandamus do issue to compel the Registrar of Persons to register the Applicant and a valid Kenyan Citizen by Birth and thereupon to issue a National Identity Card to the Applicant.4. That the costs of this Application be borne by the Respondents.”

3. The application is said to be based “upon the grounds set out in the Statutory Statement and the Verifying Affidavit of Hassan Adan Diblane Fidhow accompanying the application for leave and on such other grounds as may be adduced at the hearing hereof.”

4. However, the statutory statement is not among the documents filed with the application for leave. The documents filed on Case Tracking System Portal when the applicant sought leave are the certificate of urgency; the chamber summons; and the supporting affidavit.

5. Order 53 Rule 1(1) and (2) of the Civil Procedure Rulessays that an application for mandamus, prohibition and certiorari may only be made after leave has been granted and that the application for leave must be accompanied by a statement setting out, among other things, the grounds upon which relief is sought. The two sub-rules read as follows: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.(2)An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on. (Emphasis added).

6. And when leave is granted, the substantive motion must be served together with the statement accompanying the application for leave and the affidavit or affidavits accompanying the application for leave. This is according to Order 53 Rule 4(1).

7. The Rule states as follows:4. (1)Copies of the statement accompanying the application for leave shall be served with the notice of motion, and copies of any affidavits accompanying the application for leave shall be supplied on demand and no grounds shall, subject as hereafter in this rule provided, be relied upon or any relief sought at the hearing of the motion except the grounds and relief set out in the said statement. (Emphasis added).

8. The requirement for the statement is mandatory at the leave stage and at the time of service of the motion.

9. It is in the statement that the grounds upon which judicial review reliefs are sought and, therefore, without it there will be no cause for a judicial review court to intervene and interrogate actions or omissions of a public body.

10. In the absence of the statement, the application is incomplete and, strictly speaking, a motion without the statement is not a suit.

11. I need not belabour the point save to say that the purported application before court is fatally defective and incompetent. It is hereby struck out with costs to the respondents.It is so ordered.

SIGNED, DATED AND DELIVERED ON 13 OCTOBER 2023Ngaah JairusJUDGE