[2018] KEELC 491 (KLR)
The court found that while the applicant had established grounds for leave to commence judicial review proceedings, it would not be in the interest of justice to grant a stay of the acquisition process because the applicant had already received partial compensation for the properties in question. The court exercised...
Source-derived case information.
- Citation
- [2018] KEELC 491 (KLR)
- Parties
- Applicant: Alex Kadenge Mwendwa; Respondent: The National Land Commission; Respondent: The Hon. Attorney General; Respondent: The Kenya National Highways Authority
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 55 of 2018
- Procedural Posture
- Judicial Review / Ruling on Ex Parte Chamber Summons for Leave and Stay
- Outcome
- Leave to commence judicial review granted; stay not granted at this stage; directions issued for further proceedings.
- Judges
- LC Komingoi
- Legal Topics
- Compulsory Acquisition, Compensation for Land, Judicial Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Kadenge Mwendwa
Applicant
The National Land Commission
Respondent
The Hon. Attorney General
Respondent
The Kenya National Highways Authority
Respondent
Procedural Posture
Judicial Review / Ruling on Ex Parte Chamber Summons for Leave and Stay
Legal Issues
- 1 Whether leave to commence judicial review proceedings should be granted.
- 2 Whether leave should operate as a stay of the acquisition process given partial compensation has been paid.
Ratio Decidendi
The court found that while the applicant had established grounds for leave to commence judicial review proceedings, it would not be in the interest of justice to grant a stay of the acquisition process because the applicant had already received partial compensation for the properties in question. The court exercised its discretion to grant leave but declined to order that leave operate as a stay, directing that the issue of stay be addressed in the substantive motion. The court also set timelines for filing and serving the substantive motion and ordered that costs be in the cause.
Court Disposition
Leave to commence judicial review granted; stay not granted at this stage; directions issued for further proceedings.
Orders
- Leave is hereby granted to the applicant to commence judicial review proceedings.
- The applicant to file and serve the substantive motion within twenty-one (21) days from the date hereof.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC JUDICIAL REVIEW NO 55 OF 2018
ALEX KADENGE MWENDWA....................................................APPLICANT
=VERSUS=
THE NATIONAL LAND COMMISSION.........................1ST RESPONDENT
THE HON. ATTORNEY GENERAL................................2ND RESPONDENT
THE KENYA NATIONAL HIGHWAYS AUTHORITY...3RD RESPONDENT
RULING
1. This is the Ex parte Chamber Summons dated 30th August 2018 brought under Section 8 and 9 of the Law Reform Act, Order 53 Rule 1 and 2 of the Civil Procedure Rules and all enabling provisions of the law.
2. I have considered the said chamber summons, the prayers sought and the grounds upon which it is brought, I have considered the verifying affidavit of Alex Kadenge Mwendwa sworn on the 30th August 2018.
3. I have also considered the respective grounds of opposition filed on behalf of the 1st, 2nd and 3rd respondents.
4. The Ex parte Applicant admits that full and partial payments have been made with respect to the properties acquired under Section 125 of the Land Act 2012.
5. I find that it would not be in the interest of justice to order that leave do operate as stay as the Exparte Applicant has already received partial compensation.
6. I hereby grant the following directions:-
(i)Leave is hereby granted in the circumstances.
(ii) The Exparte Applicant do file and serve substantive motion within the next twenty (21) days from the date hereof.
(iii) The issue of stay be canvassed in the main application.
(iv) Costs be in the cause.
It is so ordered.
Dated, signed and delivered in Nairobi on this 11TH day of DECEMBER 2018
..........................
L. KOMINGOI
JUDGE
In the presence of:-
.................................Advocate for the Applicant
.............................Advocate for the Respondents
....................................................Court Assistant