[2007] KEHC 3344 (KLR)
The court found that the respondents were served with the application on 06.08.07 and were required to file their response within 14 days, by 20.08.07, in accordance with Rule 16 of the relevant Rules. No response was filed by the due date. The urgency of the application had already been determined by a previous...
Source-derived case information.
- Citation
- [2007] KEHC 3344 (KLR)
- Parties
- Applicant: Gitere Kahura Investment Limited; Respondent: The Permanent Secretary, Ministry of Livestock and Fisheries Development; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 845 of 2007
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Conservatory Order
- Outcome
- Conservatory order granted as prayed in the chamber summons dated 01.08.07.
- Judges
- BP Kubo
- Legal Topics
- Fundamental Rights, Conservatory Orders, Supervisory Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Gitere Kahura Investment Limited
Applicant
The Permanent Secretary, Ministry of Livestock and Fisheries Development
Respondent
The Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Conservatory Order
Legal Issues
- 1 Whether the respondents' failure to file a response within the stipulated period under Rule 16 warrants granting the conservatory order sought.
- 2 Whether the urgency of the application had already been determined and was not open for further debate at this stage.
Ratio Decidendi
The court found that the respondents were served with the application on 06.08.07 and were required to file their response within 14 days, by 20.08.07, in accordance with Rule 16 of the relevant Rules. No response was filed by the due date. The urgency of the application had already been determined by a previous court order and was not open for further debate. The respondents' failure to comply with the procedural requirements meant they must face the consequences of non-compliance. Accordingly, the court granted the conservatory order sought by the applicant as prayed in the chamber summons dated 01.08.07.
Court Disposition
Conservatory order granted as prayed in the chamber summons dated 01.08.07.
Orders
- The conservatory order sought vide prayer 2 in the chamber summons dated 01.08.07 is granted.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Petition 845 of 2007
IN THE MATTER OF SECTION 84 (1) OF THE CONSTITUTION OF THE REPUBLIC OF KENYA
AND
IN THE MATTER OF RULES 11, 12 AND 13 OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION & PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES, 2006
AND
IN THE MATTERS OF ALLEGED CONTRAVENTION OF THE FUNDANMENTAL RIGHTS AND FREEDOMS UNDER SECTION 75 OF THE CONSTITUTION
BETWEEN
GITERE KAHURA INVESTMENT LIMITED...........PETITIONER
VERSUS
THE PERMANENT SECRETARY, MINISTRY OF LIVESTOCK
AND FISHERIES DEVELOPMENT…...….. 1ST RESPONDENT
THE ATTORNEY GENERAL…...........…….2ND RESPONDENT
RULING
Last time the matter went before court was on 15. 08. 07 when the parties by consent had the chamber summons dated 01. 08. 07 fixed for hearing today, 21. 08. 07.
When the application came up today, petitioner’s counsel said he was ready to proceed but respondents’ counsel said he was not. He acknowledged being served with the application on 06. 08. 07; that he sought instructions from the respondents but has received none; and that as a result he has not filed response to the application. In his view there is no urgency in the application and it should be heard during normal term time.
Petitioner’s counsel maintains the application us urgent, hence its having been allocated a hearing date during the vacation. Accordingly, he urged the court to grant the conservatory order sought vide prayer 2 in the chamber summons dated 01. 08. 07.
I note that service of the application on respondents was on 06. 08. 07. Rule 16 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006 requires the respondents to have filed affidavit response to the application within 14 days of service, i.e. by 20. 08. 07. Today is 21. 08. 07 but no response has been filed.
Rule 19 of the same Rules provides that if no response is filed within the period stipulated by Rule 16, the petitioner may set the matter down for hearing and determination.
According to respondents’ counsel, there is no urgency in the matter since according to him the purported threat alluded to in a newspaper article published in the Sunday Standard of 17. 05. 07 (Annexure “GK 4”) ascribed to the Ministry of Livestock and Fisheries Development (1st Respondent) has not been followed up by a formal eviction notice.
Rule 16 aforesaid is clear. The respondents should have responded to the application within 14 days from 06. 08. 07, i.e. by 20. 08. 07. They have not. The issue of urgency of the application was determined by Aganyanya, J on 03. 08. 07 and is not for debate at today’s hearing.
Since the respondents have not seen it fit to comply with Rule 16, they must face the natural consequences of their failure.
Accordingly, I grant the conservatory order sought vide prayer 2 in the chamber summons dated 01. 08. 07.
It is so ordered.
Dated at Nairobi this 21st day of August, 2007.
B.P. KUBO
JUDGE