[2008] KEHC 530 (KLR)
The court found that the applicant had established a prima facie case for the grant of leave to apply for judicial review orders of certiorari and prohibition against the decision of the Town Clerk of Mombasa Municipal Council. The court was satisfied that the circumstances justified granting leave and that such...
Source-derived case information.
- Citation
- [2008] KEHC 530 (KLR)
- Parties
- Applicant: Bhangra Limited; Respondent: Town Clerk of Mombasa Municipal Council
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 22 & 23 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review
- Outcome
- leave granted; leave to operate as stay; applicant excused from notice requirement
- Legal Topics
- Judicial Review, Certiorari, Prohibition Orders, Leave to Apply, Local Government Decisions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bhangra Limited
Applicant
Town Clerk of Mombasa Municipal Council
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review
Legal Issues
- 1 Whether the applicant has established a prima facie case to warrant leave to apply for judicial review orders of certiorari and prohibition.
- 2 Whether leave should operate as a stay of the respondent's decision stopping developments on the suit premises.
- 3 Whether the applicant should be excused from issuing notice to the Deputy Registrar as required by the rules.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the grant of leave to apply for judicial review orders of certiorari and prohibition against the decision of the Town Clerk of Mombasa Municipal Council. The court was satisfied that the circumstances justified granting leave and that such leave should operate as a stay of the respondent's decision to stop developments on the applicant's property. The court also excused the applicant from the requirement to issue notice to the Deputy Registrar, finding sufficient cause for such dispensation. Accordingly, the summons was allowed as prayed in terms of the relevant prayers, enabling the applicant to proceed with the...
Court Disposition
leave granted; leave to operate as stay; applicant excused from notice requirement
Orders
- Leave is granted to the applicant to commence judicial review proceedings as prayed in prayers 3 and 4 of the summons within 21 days.
- Leave granted shall operate as a stay of the respondent's decision stopping developments on Plot No. Mombasa Island/Block XI/936.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Misc Appli 22 & 23 of 2008
IN THE MATTER OF: AN APPLICATION FOR LEAVE TO APPLY
FOR JUDICIAL REVIEW AND ORDERS OF
CERTIORARI AND PROHIBITION
AND
IN THE MATTER OF: LOCAL GOVERNMENT ACT CAP 265 LAWS
OF KENYA, THE LOCAL GOVERNMENT
(ADOPITVE BYLAWS) (BUILDING ORDER
1968) AND THE PHYSICAL PLANNING ACT CAP 286 LAWS OF KENYA
BETWEEN
BHANGRA LIMITED ………………………………...........……………APPLICANT
VERSUS
THE TOWN CLERK OFMOMBASAMUNICIPAL COUNCIL…RESPONDENT
R U L I N G
Pursuant to Order LIII of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act, Bhangra Ltd took out a summons dated 19th September 2008 in which it prayed for leave to apply for judicial review by way of an order of certiorari to remove into this court for quashing the decision by the Town clerk of the Municipal council of Mombasa made on 9th September 2008 stopping the applicant from carrying out developments on Plot No. Mombasa Island/Block XI/936. The applicant also sought for leave to apply for an order of Prohibition to prohibit the aforesaid town clerk from interfering with the applicant’s construction works and or developments on the suit premises.
The applicant further applied for an order directing leave to operate as a stay. The application is verified by the affidavit of Ashok Doshi. The application is accompanied by a statement of facts. The exparte applicant also applied to be excused from issuing the notice upon the Deputy Registrar of this court.
I have considered the oral arguments of Mr. Omulele, learned advocate for the exparte applicant. I have also taken into account the grounds set out on the face of the summons plus the facts deponed in the verifying affidavit of Ashok Doshi and the statement of facts. After a careful consideration I am convinced that the applicant has shown it has a prima facie case. I grant leave to the applicant to commence judicial review application as prayed in prayers 3 and 4 of the summons within 21 days from the date hereof. I also excuse the applicant from issuing the notice upon the Deputy Registrar of this court pursuant to Order LIII rule 1(3) of the Civil Procedure Rules. I am also convinced that the order for leave should operate as a stay. In short, I allow the summons dated 19th September 2008 as prayed in terms of prayers 2,3,4,5 and 6.
Dated and delivered at Mombasa this 6th day of October 2008.
J.K. SERGON
J U D G E
In open court in the presence of Mr. Mwakireti h/b Omulele for the applicant.