[2009] KEHC 4060 (KLR)
The court found that the issue of jurisdiction and the merits of the dispute were hotly contested and could not be determined at this preliminary stage. Given the existence of a serious controversy and the potential for prejudice if the matter were determined prematurely, the court held that it was appropriate to...
Source-derived case information.
- Citation
- [2009] KEHC 4060 (KLR)
- Parties
- Applicant: Bluesea Shopping Mall Limited; Respondent: The City Council of Nairobi; Respondent: Golden Lime International Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 808 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Extension of Stay After Leave Granted for Judicial Review
- Outcome
- Stay order extended until further orders of the court.
- Judges
- JW Nyamu
- Legal Topics
- Judicial Review, Public Procurement, Stay of Execution, Leave to Commence Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bluesea Shopping Mall Limited
Applicant
The City Council of Nairobi
Respondent
Golden Lime International Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Extension of Stay After Leave Granted for Judicial Review
Legal Issues
- 1 Whether the stay of the award and implementation of the public partnership contract should be extended pending the hearing of the substantive motion.
- 2 Whether there are grounds for terminating the stay, such as material non-disclosure, misrepresentation, or abuse of court process.
Ratio Decidendi
The court found that the issue of jurisdiction and the merits of the dispute were hotly contested and could not be determined at this preliminary stage. Given the existence of a serious controversy and the potential for prejudice if the matter were determined prematurely, the court held that it was appropriate to extend the stay of the award and implementation of the public partnership contract until the substantive motion could be heard and determined on its merits. The court emphasized the need to preserve the status quo and avoid prejudicing the parties before a full hearing.
Court Disposition
Stay order extended until further orders of the court.
Orders
- The order for leave to operate as stay is hereby extended until further orders of the Court.
- Matter to be mentioned on 27th February, 2009 at 9:00 am for further directions.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Misc Civil Appli 808 of 2008
IN THE MATTER OF: AN APPLICATION SEEKING LEAVE TO COMMENCE JUDICIAL REVIEW PROCEEDINGS BY BLUESEA SHOPPING MALL LIMITED
INN THE MATTER OF: THE PUBLIC PROCUREMENT AND DISPOSAL ACT, 2005 (ACT NO.3 OF 2005) AND PUBLIC PROCUREMENT AND DISPOSAL REGULATIONS, 2006.
BLUESEA SHOPPING MALL LIMITED ..................................... APPLICANT
VERSUS
THE CITY COUNCIL OF NAIROBI ................................. 1ST RESPONDENT
GOLDEN LIME INTERNATIONAL LIMITED ............... 2ND RESPONDENT
RULING
On 17th December, 2008 this court gave leave to the Applicant Company to institute Judicial review proceedings. Part of the order of leave stated:-
“That the grant of leave to commence judicial review proceedings do operate as a stay of the award and implementation of the public Partnership Contract to the 2nd Respondent for redevelopment of Eastleigh Market erected on Plot LR No 36/vii/1037 for an initial period of 30 days and the parties be at liberty to contest this part when the matter comes up for mention on 15th January 2009 at 9. 00 am.”
Following the mention as per the order, Counsel for the Applicant, the Respondents and the interested Party have presented arguments both for the extension of the stay and for its termination. By crafting this part of the order, the Court intended to create a window for it to terminate the stay on its own motion or if moved by any of the parties in situation such as the following:-
(1) In the event of material non disclosure by the Applicant.
(2) In the event of serious misrepresentation by the Applicant
(3) In the event that the courts’ process was being abused e.g. the same matter having been placed before another competent court and either finalised or pending.
(4) In a development oriented matter where substantial loss might occur, this option would give the court an opportunity for a speedy review of the situation and where necessary impose appropriate conditions in order to balance the scales of justice between the parties including for example imposing an undertaking as to damages or the furnishing of security.
From the mention contest which despite this Court’s capping, of time took over one hour, it is clear to the Court that the issue of jurisdiction is hotly canvassed and it is largely the same issue that titled the balance in granting stay.
It would not therefore be safe at this threshold stage for the court to go into the merits of the arguments presented before it. The fact that the mention submissions took so long is itself an admission of the existence of a serious controversy. Unravelling the controversy and making final determinations is the task of the Court at the next stage. In this regard the Court understands that the substantive Notice of Motion has been filed and that it is the process of being served. In the circumstances the better option for the parties is to have the Notice of Motion fasttracked for hearing and all the issues determined on merit. Any other shortcut or premature determination of any single issue or a contention of issues would occasion prejudice to the final hearing.
In the result the order for leave to operate as stay is hereby extended until further orders of the Court. Matter to be mentioned on 27th February, 2009 at 9 00 am for further directions.
DATED and delivered at Nairobi this 20th day of February 2009.
J.G. NYAMU
JUDGE