[2008] KEHC 3797 (KLR)
The court found that the applicants had demonstrated an arguable case for judicial review, having shown that they were allotted the plots and had paid all requisite dues and fees. The court held that, in such circumstances, it is proper to preserve the property by granting a stay, as failure to do so could render...
Source-derived case information.
- Citation
- [2008] KEHC 3797 (KLR)
- Parties
- Plaintiff: Daniel Muli Mati; Plaintiff: Wilson Muthoka Mutunga; Plaintiff: Joseph Muma; Plaintiff: Jonah Mutisya Ikusya; Defendant: The Town Clerk Mtito-Andei Town Council; Defendant: Mtito-Andei Town Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 21 of 2008
- Procedural Posture
- Election Miscellaneous Application / Application for Leave to Apply for Judicial Review and Stay
- Outcome
- Leave to apply for judicial review granted; leave to operate as stay of execution/implementation of the Council's decision granted.
- Judges
- JL Osiemo
- Legal Topics
- Judicial Review, Certiorari, Allocation of Land, Public Body Decision, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Muli Mati
Plaintiff
Wilson Muthoka Mutunga
Plaintiff
Joseph Muma
Plaintiff
Jonah Mutisya Ikusya
Plaintiff
The Town Clerk Mtito-Andei Town Council
Defendant
Mtito-Andei Town Council
Defendant
Procedural Posture
Election Miscellaneous Application / Application for Leave to Apply for Judicial Review and Stay
Legal Issues
- 1 Whether the applicants have established an arguable case for leave to apply for judicial review against the decision of the Town Council.
- 2 Whether the leave granted should operate as a stay of execution/implementation of the Council's decision to repossess the plots.
Ratio Decidendi
The court found that the applicants had demonstrated an arguable case for judicial review, having shown that they were allotted the plots and had paid all requisite dues and fees. The court held that, in such circumstances, it is proper to preserve the property by granting a stay, as failure to do so could render the judicial review proceedings nugatory if the plots were repossessed before the substantive application was heard. The court therefore exercised its discretion to order that the leave granted to apply for judicial review would operate as a stay of the Council's decision to repossess the applicants' plots, pending the hearing and determination of the substantive application.
Court Disposition
Leave to apply for judicial review granted; leave to operate as stay of execution/implementation of the Council's decision granted.
Orders
- Leave to apply for an order of certiorari to quash the Council's decision is granted.
- The leave so granted shall operate as a stay of execution/implementation of the Town Council's decision published on 17th March 2008.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Election Misc Appli 21 of 2008
DANIEL MULI MATI…………………………...........................…….1ST PLAINTIFF
WILSON MUTHOKA MUTUNGA……………........................……2ND PLAINTIFF
JOSEPH MUMA…………………………….......................………..3RD PLAINTIFF
JONAH MUTISYA IKUSYA……………….........................……….4TH PLAINTIFF
VERSUS
THE TOWN CLERK MTITO-ANDEI TOWN COUNCIL……1ST DEFENDANT
MTITO-ANDEI TOWN COUNCIL………..............……...……2ND DEFENDANT
R U L I N G
The facts which gave rise to this litigation briefly may be stated:
The applicants were allotted plots 4, 11, 13, 18, 19, 21 and 25 by Mutito Andei Town Council. On 17th March 2008 the town Clerk to the Council issued a notice through the Daily Nation giving the applicants 13 days within which to pay registration and payment of plot dues failure of which the plots to be repossessed.
The said Notice read as follows:-
NOTICE TO REPOSSESS PLOTS IN THE FOLLOWING ZONES AS PER P.D.Ps
“Last warning is hereby issued through this paper to all those allottees with plots in Mtito-Andei that the Deadline for payment of registration and payment of plot dues will be on 31st March 2008. Those who will not have cleared by 1st April 2008 his/her plot stand repossessed. Please note no further warning will be issued.”
The exercise of re-allocation to serious developers will follow immediately.
1. All those 22 plots in zones 5/15 below Caltex Petrol Station and bearing plot Nos 1 – 22.
2. All those 36 plots in Zone 0/11 besides and behind Kenya Commercial Bank and next to Water Tank.
3. All those unregistered and undeveloped plots in Zone 01-06
4. All those plots in Zone 5/17 behind the Mosque and next to Handcraft Plot next to Kiambu Open Air Market.
The applicant upon reading of the said notice, filed this Chamber Summons on 31st March 2008 under Order LIII of the Civil Procedure Rules seeking orders:-
(i) THAT the application be certified urgent and be heard on a priority basis.
(ii) THAT leave be granted to the Applicants herein to apply for Order of Certiorari to remove into the High Court and quash the decision of the town Council of Mtito-Andei published in the Daily Nation Newspaper dated 17th March 2008.
(iii) THAT the leave so granted do operate as a stay of execution/implementation of the orders/decision of the Town Council Mtito Andei published in the Daily Nation Newspaper on 17th March 2008.
In support of the application Daniel Muli Mati has sworn an affidavit giving grounds.
On 2nd April 2008 Mr. Kasyoka Counsel for the applicants appeared before Visram J who certified the application urgent, granted leave to apply for Judicial Review but declined to make an order that the leave so granted do operate as a stay of execution/implementation of the order/decision of the Council.
When Counsel appeared before me on 7th April 2008, he submitted that prayer (i) and (ii) of the Chamber Summons dated 3rd March 2008 had been granted by the Duty Judge and all that he sought was prayer (iii) an order that the leave so granted do operate as stay.
Before I consider the merits and demerits of this application I would like to state that it is not necessary to separate the two prayers. Once the court is satisfied that there is sufficient material to grant leave to apply for judicial review, then the property must be preserved by making an order that the leave so granted do operate as stay otherwise in the event the applicant succeeds the same will be rendered nugatory.
Counsel for the applicants further submitted that the Council has threatened to repossess the applicants’ plots and if leave is not granted the Council will go ahead and repossess the applicant’s plot.
The test as to whether leave should be granted to an applicant for judicial review is whether, without examining the matter in any depth, there is an arguable case that the relief might be granted on the hearing of the substantive application. The applicants having paid all the dues to the Council as well as the registration fees, they have an arguable case and which warranted leave as prayed. The applicants have also sought an order that the leave so granted do operate as a stay should follow. The property ought to be preserved until the application is heard and determined. Having considered the materials placed before me I am satisfied that the applicants have made out a case for the grant of an order that the leave so granted do operate as stay.
Costs of this application shall be costs in the cause.
Delivered and dated at Nairobi this 16th day May 2008.
J. L. A. OSIEMO
JUDGE