[2005] KEHC 864 (KLR)
The High Court found that the Resident Magistrate granted the closure order for the premises on Plot No. BUNGOMA TOWNSHIP/343 without hearing the tenants who were likely to be affected by the order. This omission amounted to a breach of the rules of natural justice, which require that all interested parties be given...
Source-derived case information.
- Citation
- [2005] KEHC 864 (KLR)
- Parties
- Applicant: Ashok D. Khetia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Revision Case 26 of 2005
- Procedural Posture
- Revision Application / Ruling on Revision
- Outcome
- orders of 11th November 2005 set aside; matter remitted for retrial before Resident Magistrate with directions to hear all interested parties; status quo to be maintained if order not implemented.
- Legal Topics
- Natural Justice, Public Health Orders, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ashok D. Khetia
Applicant
Republic
Respondent
Procedural Posture
Revision Application / Ruling on Revision
Legal Issues
- 1 Whether the Resident Magistrate erred by granting a closure order without hearing the tenants likely to be affected.
- 2 Whether the failure to hear all interested parties constituted a breach of natural justice.
Ratio Decidendi
The High Court found that the Resident Magistrate granted the closure order for the premises on Plot No. BUNGOMA TOWNSHIP/343 without hearing the tenants who were likely to be affected by the order. This omission amounted to a breach of the rules of natural justice, which require that all interested parties be given an opportunity to be heard before an adverse order is made. Consequently, the High Court set aside the orders issued on 11th November 2005 and directed that the matter be remitted to the Resident Magistrate for retrial, with instructions to hear all interested parties. The court further ordered that if the closure order had not been implemented, the status quo should be...
Court Disposition
orders of 11th November 2005 set aside; matter remitted for retrial before Resident Magistrate with directions to hear all interested parties; status quo to be maintained if order not implemented.
Orders
- The orders issued on 11th November 2005 in Bungoma C.M.C MISC. APPL. NO. 74 of 2005 are set aside.
- The miscellaneous application is restored and referred back to the Resident Magistrate for retrial.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA Revision Case 26 of 2005
Arising from Original Bungoma SPM’S MISC CR. APPL. NO. 74 OF 2005
ASHOK D. KHETIA…………………………………………...……….…APPLICANT VS REPUBLIC……………………………………………………..………RESPONDENT
RULING ON REVISION
The Public Health Officer attached to Bungoma Municipality, pursuant to the provisions of section 117 of the Public Health Act applied before the learned resident magistrate at Bungoma for an order to close a building situate in Plot No.BUNGOMA TOWNSHIP/343. On the 11th day of November 2005, the learned Resident Magistrate granted the order after hearing the landlord and the Public Health Officer.
Mr. Rajni Kant Shambulali Khetia trading as Buyako Enterprises being aggrieved by the order has urged this court to interfere the order on revision.
I have called for the file which was before the learned resident magistrate. After a careful perusal of the proceedings taken before the subordinate Court, it is clear that the trial Resident Magistrate granted the order without hearing the tenants in plot no.BUNGOMA TOWNSHIP/343. The learned trial Resident Magistrate therefore breached the rules of natural justice.
In the final analysis the orders issued on 11th November 2005 vide Bungoma C.M.C MISC. APPL. NO. 74 of 2005 are set aside and the miscellaneous application is restored and referred back to the learned Resident Magistrate for retrial and the learned Resident magistrate is directed to hear all the interested parties likely to be affected by the order of closure. If the order has not been implemented let the status quo be maintained.
Dated and delivered this 25th day of November 2005.
J. K. SERGON
JUDGE
In the presence of Mr. Kituyi for the applicant
NA for the respondent.