[2020] KEHC 2334 (KLR)
The court found that the applicant had demonstrated a risk that his rights could be defeated if the recommendations of the National Assembly's Public Investment Committee's Report were implemented before the hearing of the substantive judicial review application. To preserve the status quo and prevent potential...
Source-derived case information.
- Citation
- [2020] KEHC 2334 (KLR)
- Parties
- Applicant: Bernard Njiinu Njiraini; Respondent: Clerk of the National Assembly; Respondent: The National Assembly; Respondent: Cabinet Secretary, Ministry of Industrialisation, Trade & Enterprise Development; Respondent: Office of Director of Public Prosecutions; Respondent: Ethics & Anti-Corruption Commission; Respondent: Directorate of Criminal Prosecution; Respondent: Public Procurement Regulatory Authority
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application E1102 of 2020
- Procedural Posture
- Judicial Review Application / Interlocutory Application for Interim Stay Orders Pending Hearing of Main Motion
- Outcome
- Interim stay orders granted pending hearing of the main motion.
- Judges
- P Nyamweya
- Legal Topics
- Judicial Review, Interim Relief, Parliamentary Reports, Personal Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Njiinu Njiraini
Applicant
Clerk of the National Assembly
Respondent
The National Assembly
Respondent
Cabinet Secretary, Ministry of Industrialisation, Trade & Enterprise Development
Respondent
Office of Director of Public Prosecutions
Respondent
Ethics & Anti-Corruption Commission
Respondent
Directorate of Criminal Prosecution
Respondent
Public Procurement Regulatory Authority
Respondent
Procedural Posture
Judicial Review Application / Interlocutory Application for Interim Stay Orders Pending Hearing of Main Motion
Legal Issues
- 1 Whether interim stay orders should be granted to prevent implementation of the National Assembly's Public Investment Committee's Report as it relates to the applicant's personal liability.
- 2 Whether the applicant's rights would be defeated if the report is implemented before the hearing of the substantive motion.
Ratio Decidendi
The court found that the applicant had demonstrated a risk that his rights could be defeated if the recommendations of the National Assembly's Public Investment Committee's Report were implemented before the hearing of the substantive judicial review application. To preserve the status quo and prevent potential prejudice, the court exercised its discretion to grant interim stay orders, but limited the scope of the stay to only those portions of the report that sought to hold the applicant personally liable under civil or criminal law. The court also set timelines for service and filing of responses, and scheduled the hearing of the main motion.
Court Disposition
Interim stay orders granted pending hearing of the main motion.
Orders
- The applicant to serve the Notice of Motion and submissions within seven days.
- Respondents and Interested Parties to file replies within seven days of service.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW APPLICATION NO. E1102 OF 2020
IN THE MATTER OF AN APPLICATION FORORDERS OF CERTIORARI AND PROHIBITION
BETWEEN
BERNARD NJIINU NJIRAINI.......................................................APPLICANT
VERSUS
CLERK OF THE NATIONAL ASSEMBLY.......................1ST RESPONDENT
THE NATIONAL ASSEMBLY............................................2ND RESPONDENT
AND
THE CABINET SECRETARY, MINISTRY OF INDUSTRIALISATION,
TRADE & ENTERPRISE DEVELOPMENT.......1ST INTERESTED PARTY
OFFICE OF DIRECTOR OF
PUBLIC PROSECUTIONS...................................2ND INTERESTED PARTY
ETHICS & ANTI-CORRUPTION
COMMISSION........................................................3RD INTERESTED PARTY
DIRECTORATE OF CRIMINAL
PROSECUTION.......................................................4TH INTERESTED PARTY
PUBLIC PROCUREMENT REGULATORY
AUTHORITY..............................................................5TH INTERESTED PARTY
RULING
1. This Court delivered a ruling on 17th September 2020 in which it declined to grant orders sought by the ex parte Applicant that the leave granted herein to institute judicial review proceedings operate as a stay of the implementation of portions of the National Assembly’s Public Investment Committee’s (PIC) Report dated 29th May 2020 on the Pre-Export Verification of Conformity (PVoC) to Standard Services for Used Motor Vehicles, Mobile Equipment and Used Spare Parts, that seek to hold the said applicant liable in civil or criminal law of Kenya.
2. The ex parte Applicant has now filed a Notice of Motion application dated 14th October 2020, and is seeking the following orders therein:
1. THAT this application be certified urgent and be heard ex pane.
2. THAT leave granted by the Ruling and Order dated 17th September 2020 be and is hereby extended and the said order is hereby reviewed to the extent that the leave granted to institute judicial review proceedings as extended herein shall operate as a stay of the implementation of portions of the National Assembly's Public Investment Committee's (PIC) Report dated 29th May 2020 on the Pre-Export Verification of Conformity (PVOC) to Standard Services for Used Motor Vehicles, Mobile Equipment and Used Spare Parts that seeks to hold the applicant liable in civil or criminal law of Kenya.
3. THAT Costs be to the applicant.
4. Any other order that is just and equitable.
3. The application is supported by an affidavit sworn on 14th October 2020 by the ex parte Applicant. The main ground for the application is that the Parliamentary Investments Committee’s Report dated 29th May 2020 was subsequent to this Court’s ruling adopted by the National Assembly with amendments on the 13th October 2020, but the excerpts that recommended that the ex parte Applicant be held personally liable were retained. Further, that the said Parliamentary Investments Committee’s Report shall be implemented by the Interested Parties within 60 days of the 13th October 2020 which shall defeat the ex parte Applicant’s rights.
4. In the circumstances I hereby direct as follows:
I. Theex parteApplicant shall serve the Respondents and Interested Parties with theNotice of Motion application dated 14th October 2020, skeletal submissions thereon, and a copy of these directions within seven (7) days of today’s date.
II. The Respondents and Interested Parties areat liberty to file a replying affidavit and reply submissions within seven (7) days of service by theex parteApplicant.
III.The hearing of the Notice of Motion dated 14th October 2020 shall take place on 9th November 2020.
IV.Pending the hearing of the saidNotice of Motion on 9th November 2020, interimorders of stay are hereby granted, staying any and furtherimplementation of the recommendations madeintheNational Assembly'sParliamentary Investments Committee’s Report and Recommendations dated 28th May 2020on the Pre-Export Verification of Conformity (PVOC) to Standard Services for Used Motor Vehicles, Mobile Equipment and Used Spare Partsas adopted on 13th October 2020, only in so far as they seek to hold the ex parte Applicant personallyliable under the civil or criminal law of Kenya.
V.The Deputy Registrar ofthe Judicial Review Division shall send a copy of this ruling to the ex parte Applicants and Respondent by electronic mail by close of business onWednesday, 21st October 2020.
VI. The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for virtual hearing on9th November 2020.
VII.Parties shall be at liberty to apply.
5. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 16TH DAY OF OCTOBER 2020
P. NYAMWEYA
JUDGE