[2009] KEHC 1869 (KLR)
The court determined that, due to the circumstances under which the matter was filed during court vacation and the resulting forum, it was prudent to refer the application for review, along with the main application, to be heard at Machakos. However, given the procedural complexities and the fact that the judge who...
Source-derived case information.
- Citation
- [2009] KEHC 1869 (KLR)
- Parties
- Applicant: Councillor Godfrey Mumo Kithae; Applicant: Councillor Lena Nduku Kamosu; Respondent: Municipal Council of Kitui
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 275 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Stay Order
- Outcome
- Matter referred to the Hon. Chief Justice for directions.
- Judges
- CM Njagi
- Legal Topics
- Judicial Review, Certiorari and Prohibition, Review of Orders, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Councillor Godfrey Mumo Kithae
Applicant
Councillor Lena Nduku Kamosu
Applicant
Municipal Council of Kitui
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Stay Order
Legal Issues
- 1 Whether the application for review of the stay order should be heard by the same judge who granted it or another judge.
- 2 Whether the matter should be heard at Machakos or Nairobi.
- 3 Whether the application for review should be heard together with the main application.
Ratio Decidendi
The court determined that, due to the circumstances under which the matter was filed during court vacation and the resulting forum, it was prudent to refer the application for review, along with the main application, to be heard at Machakos. However, given the procedural complexities and the fact that the judge who made the original order may not be available, the court found it appropriate to refer the matter to the Hon. Chief Justice for directions under Order XLIV rule 4(2) of the Civil Procedure Rules. This approach would ensure proper administration of justice and adherence to procedural requirements regarding the hearing of review applications.
Court Disposition
Matter referred to the Hon. Chief Justice for directions.
Orders
- The matter is referred to the Hon. Chief Justice for directions under Order XLIV rule 4(2) of the Civil Procedure Rules.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Misc Civil Appli 275 of 2009
IN THE MATTER OF: AN APPLICATION BY COUNCILLOR GODFREY MUMO KITHAE AND COUNCIL LENA NDUKU KAMOSU FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION
AND
IN THE MATTER: THE LAW REFORM ACT, CAP 26, LAWS OF KENYA
AND
IN THE MATTER OF: THE LOCAL GOVERNMENT ACT, CAP 265, LAWS OF KENYA
BETWEEN
COUNCILLOR GODFFREY MUMO KITHAE………...…………1ST APPLICANT
COUNCILLOR LENA NDUKU KAMOSU……………...………..2ND APPLICANT
VERSUS
THE MUNICIPAL COUNCIL OF KITUI……………………………RESPONDENT
R U L I N G
On 28th August, 2009, this court granted leave to the Applicants herein to file an application for judicial review, and for that leave to operate as a stay. The Respondents have now come forth applying for a review, especially of the order that the leave to file the application for judicial review should operate as a stay.
O. XLIV rule 2 of the Civil Procedure Rules ordains that such an application as this one “shall be made only to the judge who … made the order sought to be reviewed.” Under rule 4(1) of the said Rules, however, “If the judge who … made the order is no longer attached to the court, the application may be heard by any other judge who is attached to the court at the time the application comes for hearing.”
This matter was filed in the High Court of Kenya at Machakos, and it rightly belongs to that Registry. It ought, in the first place, to have been heard at Machakos. But the court was on vacation when it was filed, and the matter found its way to the Nairobi court which was handling vacation matters on Judicial Review. That court was neither at Machakos, nor within the Judicial Review Division in Nairobi.
In those circumstances, it is my humble view that the application for review ought to be heard along with the main application in order to expedite the entire judicial process, and that the hearing ought to take place at Machakos. However, in view of the circumstances of the matter, I find it more prudent to place it before His Lordship, the Hon. the Chief Justice, for His Lordship’s directions under O. XLIV rule 4(2) of the Civil Procedure Rules.
The matter is accordingly referred to the Hon. Chief Justice for His Lordship’s directions.
Dated and delivered at Nairobi this 17th day of September 2009.
L. NJAGI
JUDGE