[2024] KECA 1420 (KLR)
The court found that the applicants had filed the motion promptly, only 12 days after the decision sought to be stayed, contrary to the earlier impression that it was filed late. The court also determined that the continuation of criminal proceedings and the potential development or disposal of the property could...
Source-derived case information.
- Citation
- [2024] KECA 1420 (KLR)
- Parties
- Applicant: Ashok Labhshanker Doshi; Applicant: Pratibha Ashok Doshi; Applicant: Magnum Properties Limited; Respondent: Director of Public Prosecution; Respondent: Director of Criminal Investigations; Respondent: Inspector General, National Police Service; Respondent: Chief Land Registrar; Respondent: Attorney General; Respondent: Chief Magistrate, Milimani Law Courts; Respondent: Green View Lodge Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application E408 of 2024
- Procedural Posture
- Civil Application / Application for Certification of Urgency in the Court of Appeal Pending Appeal From Environment and Land Court
- Outcome
- Application for certification of urgency allowed; previous order declining urgency set aside.
- Judges
- F Tuiyott
- Legal Topics
- Stay of Proceedings, Injunctive Relief, Urgency Certification, Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ashok Labhshanker Doshi
Applicant
Pratibha Ashok Doshi
Applicant
Magnum Properties Limited
Applicant
Director of Public Prosecution
Respondent
Director of Criminal Investigations
Respondent
Inspector General, National Police Service
Respondent
Chief Land Registrar
Respondent
Attorney General
Respondent
Chief Magistrate, Milimani Law Courts
Respondent
Green View Lodge Limited
Respondent
Procedural Posture
Civil Application / Application for Certification of Urgency in the Court of Appeal Pending Appeal From Environment and Land Court
Legal Issues
- 1 Whether the notice of motion seeking stay of criminal proceedings and preservation of property should be certified as urgent.
- 2 Whether the application was filed promptly after the decision sought to be stayed.
- 3 Whether the applicants would suffer prejudice if the motion is not heard urgently.
Ratio Decidendi
The court found that the applicants had filed the motion promptly, only 12 days after the decision sought to be stayed, contrary to the earlier impression that it was filed late. The court also determined that the continuation of criminal proceedings and the potential development or disposal of the property could expose the applicants to prejudice. On this basis, the court set aside its earlier order declining to certify the motion as urgent and instead certified the motion as urgent, allowing it to be heard expeditiously.
Court Disposition
Application for certification of urgency allowed; previous order declining urgency set aside.
Orders
- The order of 15th August 2024 declining to certify the notice of motion dated 12th August 2024 as urgent is set aside.
- The notice of motion dated 12th August 2024 is hereby certified as urgent.
Full Case Text
Judgment text and source record
39 paragraphs
Doshi & 2 others v Director of Public Prosecution & 6 others (Civil Application E408 of 2024) [2024] KECA 1420 (KLR) (11 October 2024) (Ruling)
Neutral citation: [2024] KECA 1420 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Application E408 of 2024
F Tuiyott, JA
October 11, 2024
Between
Ashok Labhshanker Doshi
1st Applicant
Pratibha Ashok Doshi
2nd Applicant
Magnum Properties Limited
3rd Applicant
and
director of Public Prosecution
1st Respondent
Director of Criminal Investigations
2nd Respondent
Inspector General, National Police Service
3rd Respondent
Chief Land Registrar
4th Respondent
Attorney General
5th Respondent
Chief Magistrate, Milimani Law Courts
6th Respondent
Green View Lodge Limited
7th Respondent
(An application for injunction and stay of proceedings pending the lodging, hearing and determination of an appeal from the Ruling and Order of the Environment and Land Court at Nairobi (O. A. Ongote, J.) delivered on 31st July, 2024 in ELC Petition No. E017 of 2023 Environment & Land Petition E017 of 2023 )
Ruling
1. On 15th August 2024, I declined to certify the notice of motion dated 12th August 2024 as urgent. On the same day of my order,counsel for the applicant requested that the question of certification be placed before me for hearing inter partes. The request for hearing was made pursuant to Rule 49(5) of the Court of Appeal Rules.
2. At the hearing Mr. Okwach learned counsel represented the three applicants, Mr. Omwega learned prosecution counsel appeared for the 1st respondent, Mr. Kamau learned State Counsel represented the 2nd and 6th respondents, while Mr. Githinji Mwangi learned counsel appeared for the 7th respondent.
3. In respect to what is relevant now, namely whether or not the motion should be certified urgent, counsel for the applicants submitted the motion seeks to stay criminal proceedings against the applicants and second, seeks to preserve the substratum of the suit. On the other hand, learned counsel Mr. Githinji argued that courts have in the past, as far back as in the years 2020 and 2021, made similar orders as those sought to be stayed, yet the applicants have not appealed against them. Second, that the challenge to his client’s title to the suit property was dismissed in the year 2021, and to date the title remains in the name of his client. Counsels Omwega and Kamau supported the court’s decision not to certify the current motion and urged me not to change my mind as nothing new had been presented that would warrant such change.
4. I have relooked at the motion sought to be certified. The application seeks to stay the hearing of MCCC E257 of 2023, Republic vs Ashok Labhshanker Doshi & 2 others and development, disposal, alteration or transfer of LR. No. 209/3850 whose possession is with the 7th respondent and who also holds the title. Undoubtedly, the decision sought to be stayed paves the way for the criminal proceedings to continue and for the 7th respondent to have an unrestrained enjoyment of his property. Whether the motion is merited or will eventually succeed is a call to be made by the Court that will hear the motion.
5. What I must consider now is whether the current state of affairs exposes the applicants to some adverse action and if so whether the motion was filed timeously. Regarding the former, it seems that continuation of criminal proceedings and the possible development or disposal of the property could be prejudicial to the applicants. As to the second question, the decision sought to be stayed was made on 31st July 2024 and the motion brought just 12 days later. It was filed promptly.
6. I must confess that at the time of making the order declining certification I was under the impression that the motion was filed hopelessly late and so not deserving of urgent hearing. It is now obvious that it was in fact filed speedily.
7. The upshot is that I set aside my order of 15th August 2024, declining to certify the notice of motion dated 12th August 2024 as urgent and in its place I do hereby certify the motion as urgent. No order as to costs.
DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF OCTOBER, 2024. F. TUIYOTT...................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.