Preamble In this Orderapplication for judicial review includes an application

 

order 53 applications for judicial review

Apr 25,  · PROCEDURE FOR THE APPPLICATION OF JUDICIAL REVIEW AND THE REMEDIES EXPLAINED - KENYA LAW At the time of application for judicial review, the order you seek the court to quash must be presented to the court by making a photocopy of the order and Judicial review is covered under Order 53 and Ordinary Review is provided for under Order THE EXCLUSIVITY PRINCIPLE • Order 53 1. An application for judicial review must be made if the applicant is seeking— • (a) an order for mandamus, prohibition or certiorari; or • (b)an injunction under section 21J of the Ordinance restraining a person from acting in Author: Yaumeigou. base an application for judicial review were of common law origin. The practice of the courts exercising judicial review powers was largely borrowed from the United Kingdom and order 53 of the Civil Procedure Rules. The question is what has happened in this .



Author: Koki M. This application is made ex parte in sub section 3 it requires that notice be given for application for leave. The notice is to be given to the registrar of the High Court.

Time limitation is crucial. Order 53 provides for time limits within which a person can apply for leave. The law is very strict where it comes to certiorari, you have to file your application for leave within 6 months of the date your application e. If you do not file within 6 months the court cannot grant an extension.

Time limitation is not stipulated for Mandamus or Prohibition but it is required that you file the application within a reasonable time. Reasonable time means that you may serve 3 months after the licence was denied and be denied leave or for 8 months and they grant leave.

But with certiorari it has to be 6 months and it cannot be extended. Order 53 4 — Grant of leave to make the application can operate as a stay of proceedings.

It can be a stay of the proceedings that you are complaining about. The grant of leave will operate as a stay of proceedings where you are seeking to quash whatever has taken place under certiorari. Stay will only apply in case of certiorari and prohibition and not Mandamus. Under section 3 1 after you have been granted leave, you make your application by way of Notice of Motion which will include a statement.

Within 21 days of the grant of leave, you must make your application. If personal allegations have been made, you must serve the party that allegations have been made against. You must serve the other party, e. You file an Affidavit of Service stating some things usually a court process server will swear an Affidavit stating how they effected Service.

File the Affidavit of service within 8 clear days of hearing and file the Affidavit with a court registry and the affidavit must be in the file on the day of hearing. The administrative body or tribunal will enter appearance which is done in a prescribed format. After the court listens to your allegations, order 53 applications for judicial review, the court makes a ruling and the court may rule in your favour or against.

When asking for certiorari, order 53 applications for judicial review, you must categorically indicate that in your pleadings etc.

There are only three remedies that the courts can grant for judicial review. Whether the courts will grant one of these rules depends on the circumstances, order 53 applications for judicial review. Historically it was a royal command or demand for information. The practice was that the sovereign who was the king or the queen upon receiving a petition from a subject complaining of some injustice done to him would state that he wishes to be certified of the matter and then he would order the matter to be brought up to him.

Ordering the matter to be brought up to him will include ordering that the records of the proceedings be brought up to the sovereign. The purpose of calling up order 53 applications for judicial review records was in order for order 53 applications for judicial review sovereign to quash any decision that has been made after acquainting himself of the matter in other words after being certified of the matter, order 53 applications for judicial review.

Currently, certiorari is an order to remove proceedings from an administrative body or an inferior court to the High Court in order to be investigated and if found wanting on any one of the grounds we studied including ultra vires, be quashed.

The order can issue against administrative tribunals, it can also issue against inferior courts such as the industrial courts, it can issue against local authorities, order 53 applications for judicial review, it order 53 applications for judicial review issue against Ministers of Government.

It can also issue against miscellaneous public bodies exercising public functions. Majid Cockar V. Director of Pensions Nai H. Misc App of In computing the pension payable to the CJ the pensions department made a mistake in their calculations. The former Chief Justice went to court and upon application for Judicial Review the court issued the order of certiorari to quash the decision awarding the former CJ an amount of money as pension.

For Certiorari to be issued, indeed for any one of the 3 orders to be issued, a person must be having Locus Standi which is crucial as you must have the capacity to sue.

You have capacity to sue by having a sufficient interest in the matter. You have a sufficient interest in the matter if you will be directly affected by the matter. The order of Prohibition is an order issued by the High Court which prohibits a body administrative bodies from continuing proceedings; it will order 53 applications for judicial review prohibit a body from continuing to order 53 applications for judicial review out decisions wrongly or wrongfully made.

This order may be issued against judicial body acting in an administrative capacity i. It can also issue against an administrative body performing administrative duties or against the government officials etc. It can be issued to stop a public body from continuing proceedings that are ultra vires.

Order 53 applications for judicial review can also be issued to stop an admin body from continuing to do something in excess of jurisdiction.

It can also be used to stop an administration body from abusing their powers. B At Page Lord Denning stated as follows. Lord Atkin in the same case said as follows. This illustrates the point that prohibition will lie to restrain an administrative body from doing something wrongly or misusing its power, abuse of power etc. When one applies for the order of Certiorari, one is seeking to quash a decision that has already been made.

At the time of application for judicial reviewthe order you seek the court to quash must be presented to the court by making a photocopy of the order and attaching it to the Application. With Prohibition, you do not have to attach the copy of the order.

The order of Mandamus is derived from the Latin word Mandare meaning to command. It is a court order issued to compel the performance of a public duty where a public body or official has unlawfully refused, declined or otherwise failed to undertake the duty. Mandamus is a court order issued to compel the performance of a public duty where a public body or official has public refused failed or declined to undertake a duty.

Mandamus issues where there is a duty imposed by statute or common law. Order 53 applications for judicial review note that the duty must be a public duty, order 53 applications for judicial review, Mandamus will not issue in respect of a duty that is of a private nature even if the body in question is a public body. For example where two construction companies agree to undertake some work who agree to resolve any dispute between them by arbitration through the industrial court.

The industrial court will be performing a private function and thus the order of Mandamus cannot issue. For Mandamus to issue, the Applicant must have made a request for the performance of a public duty which has been refused, declined or ignored. This means that if a public admin body refused to do something, you must approach it and request it to perform the function or the courts will not hear you. Unreasonable delay on the part of the public body will be treated as refusal.

The duty must be a specific duty. You cannot apply for the order of Mandamus for a duty that is general, it must be specific e, order 53 applications for judicial review. Such an obligation is so imprecise i. The lack of specificity does not mean that it is meaningless. Duty can be carried out but it is not precise. Mandamus is used to enforce performance of specific duties and not the exercise of mere powers. Kenya National Examination Council V. Nyongesa had requested the university for his results and they had refused so he applied for an order of mandamus to the court and he was granted.

There was a specific duty for the university to release the results. In addition to judicial review there is what is known as ordinary review, order 53 applications for judicial review. Ordinary Review is a review of judgment or order of a court of law. Judicial review is a review of an act or a decision of an administrative body. When can a person review an ordinary review in a different court?

If the judge that made the decision is no longer at the station, then one can apply to a different court for review. If the judge who made the judgment has not been present for 3 months after 3 months it is considered that there has been an inordinate delay and the court can allow you to review the decision in a different court.

There is no time limitation to when one can apply for an ordinary review but the application must be made without delay. There is no requirement of leave of court to apply order 53 applications for judicial review in judicial review where one has to seek leave of court. Ordinary Review is review of judgment or order made by a court of law Judicial Review is review of an act or decision of an administrative body.

This order provides that any person considering himself aggrieved by decree or an order from which an Appeal is allowed but from which no appeal has been allowed, or a person who feels aggrieved by a decree or order from which no Appeal is allowed may petition the court that made the order of decree on the following conditions.

In these 3 circumstances an aggrieved person may apply to the court which made the decree or order. There are certain exceptions to the requirement that application for review be made to the court that made the decree or order. Where the Chief Justice orders some other person, i. Where the Judge or Magistrate who made the decree or the order is no longer attached to that court e.

Where the Magistrate or Judge who made the order or decree has been absent from the station for more than 3 months from the date of filing of your application. Where you have discovered new and important matter of evidence. Note that there is no time limitation for application for ordinary review but it must be brought without unnecessary delay.

Upon ordinary Review, there may be a re-hearing of a case. The case may be heard afresh. No double review is allowed meaning that no application can be brought for review of an order issued upon an application for order 53 applications for judicial review review. With judicial review an aggrieved party must first of all apply for leave of court and on the other hand there is no order 53 applications for judicial review for leave on application for ordinary review.

With Judicial Review especially where an applicant seeks the order of Certiorari the application must be brought within six months i. Kenya Airways Limited V. Kenya Airways Pilots Association H. Misc App No. Judicial Review is not an Appeal. An Appeal has been described as the transfer or taking of a case from a lower court to a higher court in the hope of reversing or modifying the decision of the former.

 

 

order 53 applications for judicial review

 

Apr 25,  · PROCEDURE FOR THE APPPLICATION OF JUDICIAL REVIEW AND THE REMEDIES EXPLAINED - KENYA LAW At the time of application for judicial review, the order you seek the court to quash must be presented to the court by making a photocopy of the order and Judicial review is covered under Order 53 and Ordinary Review is provided for under Order The Applicant’s pleading is a vital element of every judicial review case. This is reflected in the model Order 53 Statement at Appendix II. Concision, clarity, precision and adequate particularity are the supreme requirements of every Order 53 pleading. base an application for judicial review were of common law origin. The practice of the courts exercising judicial review powers was largely borrowed from the United Kingdom and order 53 of the Civil Procedure Rules. The question is what has happened in this .