[2021] KEHC 8871 (KLR)

[2021] KEHC 8871 (KLR)

The court found that while the Mutunga Rules do not expressly provide for the procedure to set aside or review conservatory orders, the Civil Procedure Rules may be invoked where there is a procedural lacuna. However, the applicants failed to demonstrate that their replying affidavit was properly filed or that its absence constituted new and important evidence. The court held that the applicants did not exercise due diligence in ensuring their documents were on record and failed to provide sufficient grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The conservatory orders were issued to preserve the status quo in a matter of...

Citation
[2021] KEHC 8871 (KLR)
Parties
Applicant: Gabriel Otiede; Applicant: Evans Onyango; Applicant: Elijah Odingo Osadho; Applicant: Dickson Oruko Wasonga; Applicant: Richard Atito Orondo; Respondent: County Commissioner – Siaya County; Respondent: Cabinet Secretary, Ministry of Interior & Co-ordination; Respondent: The Attorney General
Court
High Court
Court Station
High Court at Siaya
Jurisdiction
Kenya
Judgment Date
3 March 2021
Case Number
Constitutional Petition E2 of 2020
Procedural Posture
Constitutional Petition / Ruling on Application for Review of Conservatory Orders
Outcome
application dismissed
Legal Topics
Conservatory Orders, Review of Court Orders, Public Participation, Procedural Law, Status Quo Preservation
Source Language
English
Constitutional Law Civil Procedure Conservatory Orders Review of Court Orders Public Participation Procedural Law Status Quo Preservation

Case Brief

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Parties

Gabriel Otiede

Applicant

Evans Onyango

Applicant

Elijah Odingo Osadho

Applicant

Dickson Oruko Wasonga

Applicant

Richard Atito Orondo

Applicant

County Commissioner – Siaya County

Respondent

Cabinet Secretary, Ministry of Interior & Co-ordination

Respondent

The Attorney General

Respondent

Procedural Posture

Constitutional Petition / Ruling on Application for Review of Conservatory Orders

Legal Issues

  1. 1 Whether the application for review and setting aside of conservatory orders is properly before the court.
  2. 2 Whether the Civil Procedure Rules apply in constitutional petitions for review of conservatory orders.
  3. 3 Whether the applicants demonstrated sufficient grounds for review or setting aside of the conservatory orders issued on 16/12/2020.

Ratio Decidendi

The court found that while the Mutunga Rules do not expressly provide for the procedure to set aside or review conservatory orders, the Civil Procedure Rules may be invoked where there is a procedural lacuna. However, the applicants failed to demonstrate that their replying affidavit was properly filed or that its absence constituted new and important evidence. The court held that the applicants did not exercise due diligence in ensuring their documents were on record and failed to provide sufficient grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The conservatory orders were issued to preserve the status quo in a matter of...

Court Disposition

application dismissed

Orders

  • The application dated 5/1/2021 for review and setting aside of conservatory orders is dismissed.
  • There shall be no order as to costs.