[2005] KEHC 1431 (KLR)
The court held that there is no procedural requirement under Rules 9 and 10 of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Protection and Procedure Rules 2001 to refer constitutional matters to the Chief Justice for assignment of a judge or judges. The court further...
Source-derived case information.
- Citation
- [2005] KEHC 1431 (KLR)
- Parties
- Plaintiff: Eliphas Njue Mukindia; Plaintiff: John M’Rewa Mukindia; Plaintiff: Fredrick Ngige Mukindia; Defendant: Consolidated Bank of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 143 of 2005
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion and Interlocutory Injunction
- Outcome
- injunction discharged; leave to appeal granted
- Legal Topics
- Interlocutory Injunctions, Constitutional Reference Procedure, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliphas Njue Mukindia
Plaintiff
John M’Rewa Mukindia
Plaintiff
Fredrick Ngige Mukindia
Plaintiff
Consolidated Bank of Kenya Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion and Interlocutory Injunction
Legal Issues
- 1 Whether the constitutional application should be referred to the Chief Justice for assignment of a judge or judges.
- 2 Whether the stay of proceedings under Rule 9 of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Protection and Procedure Rules 2001 is discretionary or mandatory.
- 3 Whether the injunction granted on 10/2/2005 should be extended or discharged.
Ratio Decidendi
The court held that there is no procedural requirement under Rules 9 and 10 of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Protection and Procedure Rules 2001 to refer constitutional matters to the Chief Justice for assignment of a judge or judges. The court further found that the stay of proceedings under Rule 9 is discretionary, not mandatory, as established in Gichuhi Kimura v Samuel Ngunua Kimotho & Others. Given that the application for constitutional reference was not ready to proceed and that the continued existence of the injunction would unjustly erode the respondent's rights, the court declined to extend the stay and discharged the...
Court Disposition
injunction discharged; leave to appeal granted
Orders
- The injunction granted on 10/2/2005 is discharged.
- Leave to appeal is granted to the applicants.
Full Case Text
Judgment text and source record
11 paragraphs
REPULIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI Civil Suit 143 of 2005
ELIPHAS NJUE MUKINDIA……………………………1ST PLAINTIFF JOHN M’REWA MUKINDIA……………….…..………2ND PLAINTIFF FREDRICK NGIGE MUKINDIA………………………3RD PLAINTIFF VERSUS CONSOLIDATED BANK OF KENYA LIMITED………DEFENDANT
RULING
At the hearing of the Notice of Motion of 10/2/2005 Miss. Kabage for the Applicants referred to Rules 9 and 10 of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Protection and Procedure Rules 2001, (the Rules). That this being a constitutional matter it should be referred to the Chief Justice to assign a judge or judges to hear the application.
Why this was not raised when the matter came before me on the 24/2/2005 and I fixed today for hearing of the application l am not advised.
Under Rule 9 and 10 of the Rules there is no requirement for this matter to be referred to the Chief Justice for direction and I decline to do. So far as stay is concerned in Gichuhi Kimura Vs Samuel Ngunua Kimotho & Others HCCC NO. 88O OF 1977 l found that the stay referred to in Rule 9 was discretionary and not mandatory.
In a case like this where the application, although given today for the hearing of the Constitutional Reference is not ready to proceed it would absolutely be unjust for a stay to be in place as the Respondent’s rights are being eroded by reason of the injunction. In this case l do not extend the stay which is in place at present. If Miss Kabage wishes to proceed now l will hear her.
DATED and DELIVERED at NAIROBI on 7th March 2005
P. J RANSLEY JUDGE
Miss Kabage: I want leave to appeal Mr. Ogunda I leave it to the court. I want injunction dismissed. Court: Leave to Appeal granted. The Injunction granted on the 10/2/2005 is discharged.
P.J RANSLEY JUDGE