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NAME: Njeru Martin Mugambi Reg No: 1016306 Civil Procedure 2: Take Home Cat

Question 1: Discuss the purpose of judicial review and the rules that govern it. Judicial review is the process through which the High Court ensures that public bodies do not exceed or misuse their powers. Its purpose therefore is to ensure that these bodies do not exceed or misuse their powers. Only the High Court has judicial review powers and it exercises these powers using the orders of mandamus, certiorari and prohibition. Any person who feels aggrieved by the decision of a body that is bound by the High Court can apply to the High Court for review of the issues they are aggrieved about. Under article 165(6) of the constitution, the High Court has supervisory jurisdiction over subordinate courts and bodies performing judicial or quasi-judicial functions. Section 7 and 8 of the Law Reform Act Cap26, the High Court is given authority of usage of the orders of mandamus, certiorari and prohibition in exercising its quasi-judicial functions. Grounds for applying for judicial review are threefold. Firstly upon discovery of new and important matter of evidence the applicant can apply for judicial review. The applicant must show that the discovery could not have been made earlier despite their exercise of due diligence. The relevance of the evidence with the outcome is also paid account of. Secondly if there is a mistake or error apparent on the face of the record, one can apply for judicial review. For example, in the Koigi wa Wamwere trial where he was charged with robbery with violence. He was sentenced to life imprisonment which was an error apparent on the face of the record. Any other sufficient reason that the aggrieved may have will also be heard by the High Court and will be judged on merit. Order 53 of the Civil Procedure Rules prescribes the procedure for the usage of the orders of mandamus, certiorari and prohibition. In applying for judicial review, the applicant goes through two stages namely the ex-parte stage and the inter-parte stage. The purpose of the ex-parte stage is to satisfy the court that theres merit in the proposed notice of motion. This is done in the absence of the opposing party. An ex-parte application includes a statement setting out the name and description of the applicant, the relief sought and the grounds that relief sought is based on. It also includes affidavits verifying the facts set out in the statement of claims. The applicant must then give notice to the high court of such filing. This is served on the registrar. Once leave has been granted to file for any of those three orders, the applicant moves on to the inter-parte stage. Once leave has been granted, the applicant has 21 days to file a notice of motion in the high court to commence the inter-parte stage unless otherwise granted. This shall be served on all persons directly affected. An affidavit giving the names and addresses of, and the place and date of service on all persons served shall be produced in court on the hearing of the motion. The opposing party will have an opportunity to defend themselves upon which the High Court shall make a decision on whether to grant the applicant the relief sought or not

Question 2: Critically examine the role of the High Court in the arbitration process. The procedure for arbitration is set out in Order 45 of the Civil Procedure Rules. In any suite where the parties are under no disability, they may apply to the High Court for an order of reference. Under Rule5, the High Court can appoint an arbitrator where the parties cannot agree within reasonable time the person to be appointed as arbitrator, where the arbitrator refuses to accept the appointment, where the arbitrator dies, refuses, neglects or becomes incapable, leaves Kenya. But in doing so, it must give both parties an opportunity to be heard with respect to appointing an arbitrator. The High Court can issue processes to parties and witnesses whom the arbitrator desires to examine and anyone who does not comply with such process shall be found to be in contempt of court. The High Court can also extend time for making an award as long as both parties and the arbitrator are in concurrence. The High Court has the power to modify or correct an award where it appears that part of the award is upon a matter not referred to the arbitrator, where the award is imperfect in form or contains obvious error or where the award contains clerical mistake or an error arising from an accidental slip or omission. The court may also remit to arbitration to the same arbitrator where the award has left some matters undetermined, where the award is so indefinite as to be incapable of taking effect or where an objection to the legality of the award is apparent on the face of it. An award may also be set aside by the High Court on grounds of corruption or misconduct of arbitrator or where either party has fraudulently concealed anything in the arbitration that they ought to have revealed. Where the High Court has set aside an arbitration, the court shall proceed with the suite.

Question 3: Explain the following terms a. Garnishee Order. A garnishee order is a legal procedure by which a creditor can collect what a debtor owes by reaching the debtors property when it is in the hands of someone other than the debtor. A garnishee is a party that is indebted to or is bailee for another whose property has been subjected to garnishment. Its a request for an order of attachment made ex-parte. This must be made with a supporting affidavit. the affidavit shows the following: the name and address of the judgment debtor, the identity of the judgement, the fact that the garnishee is under the courts jurisdiction, the garnishee is indebted to the judgement debtor, the name and address of the bank of the judgment debtor. Once the ex-parte application has been made, the court grants an order nisi (temporary order) which is served to the garnishee and the judgement debtor. The order nisi compels the garnishee not to pay the debt to anyone without incurring the risk of having to pay it again as was seen in the case of Gilbraith v Grimshaw. After that comes the inter-parte stage in which the court makes the order nisi absolute.. b. Receiver manager. Order 41 of the Civil Procedure Rules govern the appointment of a receiver manager. A receiver manager is appointed where theres noway of getting at the funds except by the appointment of a receiver such as is the case where a business is a going concern and the profits of which shall be used to pay the decree holder. A receiver manager can also be appointed where his appointment will be effective. The work of the receiver manager is to receive rents and income of the judgement debtor. In the case of Commercial Bank of Africa v Kajuju Holdings, a company borrowed a loan from CBA by executing a debenture in favour of the bank. The terms of the debenture, the company agreed that if they defaulted in payment, the bank was at liberty to appoint a receiving officer. The company defaulted in payment and thus the bank appointed the receiving manager who took control of the companys affairs. The company filed a suite to challenge this but the court held that the bank was entitled to appoint the receiver manager to collect income and transmit the same to the bank

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