SILAS KIPKEMBOI v THE DISTRICT CO-OPEATIVE OFFICER NANDI CENTRAL NORTH DISTRICT ANDTHE COMMISSIONER FOR CO-OPERATIVE DEVELOPMENT [2010] KEHC 2338 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

Judicial Review 17 & 232 of 2009

SILAS KIPKEMBOI ……………………………………...............APPLICANT

=VERSUS=

THE DISTRICT CO-OPEATIVE OFFICER

NANDI CENTRAL NORTH DISTRICT ANDCOMMISSIONER

FOR CO-OPERATIVEDEVELOPMENT.................... RESPONDENT

R U L I N G

I.Introduction

1. Leave was granted on29/4/2009(Ibraim J.) to

the applicantto file Judicial Review Proceedings

to this Court under Order L III Civil Procedure

Rules

2. A Notice of motion dated 19thmay 2009 was filed

but the parties who were named therein did not include the Republic.To this end the Respondentbrought it to the applicant’s attention in their replying affidavitthat the motion was fatally defective.

3. As a result of this the applicant filed the application of21st January 2010seeking leave to  amend the notice of motion of19th May 2009to include  the Republic .  This  application was opposed to by the State.

II.Arguments put forward

4. In replying on the case law of

In the mater of Commissioner of Landsand Others and in the Misc. Application 105/2001 Visram J stated that the omission in not havingthe name of the Republic was not fatal.Leave to amend the notice of motion was accordingly granted.

5. The reasons further given was in the case of

Farmers Bus Service and others

-vs-

The Transport LicensingAppeal Tribunal

(1959) E.A. 779

ForbesAg. P. Wendan JA and Templeton J.

The Courtof appeal stated thenotice of motionmay be amended.

III.In Reply

6. The State argued thatthere are authoritiesthat show the notice of motion andthe amendments are fatal and defective, should not be permitted.

In the case law of

James Kega Kargan and Others

=vrs=

Misc. App. No. 1570/2005,Wendoh J.

and in the case law of

Republic .-vr-

Chairman, Electoral Commissioner ofKenya

Exparte Welmond Ringera J; the Courts

held that the omission of the nameRepublic was

fatal and thenotice of motion wasfatal.

IV.Opinion

7. The other authoritiesrelied onby the advocates for the applicant consistently shows amendments of the notice of motion being allowed.Theseamendments though are as concerned additional parties to the application.None refers to the Republic.

8. In this case the name of the Republic had been omitted.There is no way an applicant and a respondent can be identified.

The Case Law of

In the mater of Commissioner of Land and Others Misc. 105/2001 Visram J.

expounded how various Courts struck out application for having been broughtunder the incorrect law or procedure.

9. The said decisionpoints out that other Judges

havepermitted amendments in the case.

In thecase law of

Kentan Kijabe Hills Farmers & Co. Society

–vrs-

The District Commissioner

(Nairobi) H. Misc. App. 280/1996 Aganyanya J.application mustbe brought in the name of the Republic or else it was defective.

10. Ifind that it is a party who is beingbrought to Court being the Republic.The nameof the Republic is compulsory in applications of Judicial Review.I would declineto grantthe applicationas prayed and agreewith the principle that failureto include the Republic, the application is defective 'and fatal.

11. The application is hereby struck out with costs to the respondent.

DATED THIS 25TH DAY OF MAY, 2010 AT ELDORET.

M.A. ANG’AWA,

JUDGE.

(i)G. Adhiambo Advocate for the State from Ministry ofCo-operatives for the

1st and2nd Respondent–Present/Absent

(ii)W. Wanyonyi Advocate instructed by the firm of M/s Walter Wanyonyi and

Co.Advocate for the Applicant – Present/Absent