[1999] KEHC 96 (KLR)
The court found that it had jurisdiction to grant the restraining order sought by the applicants, relying on precedent from Civil Appeal No. 159 of 1997. The judge determined that if the 2nd and 3rd respondents were not restrained, the remedies sought in the substantive application could be rendered nugatory. The...
Source-derived case information.
- Citation
- [1999] KEHC 96 (KLR)
- Parties
- Applicant: Hon. David Mwenje & 28 Others; Respondent: The Senior Principal Magistrate Makadara, Nairobi; Respondent: The Officer Commanding Police Division Buruburu; Respondent: The District Officer Embakasi Division, Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 362 of 1999
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Interim Orders
- Outcome
- Application for review of interim orders granted; restraining order issued against the 2nd and 3rd respondents pending determination of the substantive application.
- Legal Topics
- Judicial Review, Certiorari and Prohibition, Interim Injunctions, Land Disputes, Jurisdiction, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. David Mwenje & 28 Others
Applicant
The Senior Principal Magistrate Makadara, Nairobi
Respondent
The Officer Commanding Police Division Buruburu
Respondent
The District Officer Embakasi Division, Nairobi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Interim Orders
Legal Issues
- 1 Whether the court has jurisdiction to grant the restraining orders sought against the 2nd and 3rd respondents pending determination of the substantive application.
- 2 Whether failure to grant the restraining order would render the remedies sought by the applicants nugatory.
- 3 Whether the respondents' actions amount to prejudging a matter pending before the court.
Ratio Decidendi
The court found that it had jurisdiction to grant the restraining order sought by the applicants, relying on precedent from Civil Appeal No. 159 of 1997. The judge determined that if the 2nd and 3rd respondents were not restrained, the remedies sought in the substantive application could be rendered nugatory. The court also observed that the respondents' actions could be seen as prejudging a matter still pending before the court, which was inappropriate. Accordingly, the court granted prayer No. 4 of the Chamber Application, issuing the restraining order as sought by the applicants, with costs in the cause.
Court Disposition
Application for review of interim orders granted; restraining order issued against the 2nd and 3rd respondents pending determination of the substantive application.
Orders
- Prayer No. 4 of the Chamber Application is granted; the 2nd and 3rd respondents are restrained as sought by the applicants pending determination of the substantive application.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
MISC. APP. NO. 362 OF 1999
HON. DAVID MWENJE & 28 OTHERS…..........................……………APPLICANTS
-VERSUS
1. THE SENIOR PRINCIPAL MAGISTRATE MAKADARA, NAIROBI
2. THE OFFICER COMMANDING POLICE DIVISION BURUBURU
3. THE DISTRICT OFFICER EMBAKASI DIVISION, NAIROBI............ RESPONDENTS
RULING
On 6th April, 1999, this Court granted leave to the applicants to file an application for orders of Certiorari and Prohibition. It was further ordered that the leave granted do operate as a stay of all the cases against the applicants jointly and severally now pending before the lower courts.
In the same application, the applicants had sought an order that the 2nd Respondent (Officer Commanding Police Division, Buru Buru) and the 3rd Respondent (the District Officer, Embakasi, be restrained, by themselves or through officers under their command or any other person acting in such capacity as Police or Local Authority Officer or any other interested party, from harassing, evicting or arresting the applicants and/or other members of Embakasi Kayole squatters settlement scheme.
That order was not granted, and now the applicants have moved the court for an order that the order of 6th April, 1999 be reviewed in such a manner that the restraining order against the 2nd and 3rd Respondents be granted pending the determination of the substantive application.
The application is strenuously opposed; and I have the submissions of both counsels on record. I have noted that some of the matters canvassed during the arguments herein, especially by the learned counsel for the respondents, belong to the province of the merits or otherwise of the main application.
In an application of this nature, I believe it may be prejudicial to the parties if the court were to say more than is necessary to ensure that the parties move to the next stage. With that in mind, I have asked myself first, whether or not I have jurisdiction to grant the orders sought and secondly what may be the consequences of either granting or refusing to grant the same.
On the basis of Civil Appeal No. 159 of 1997, The Officer Commanding Wajir Police Station & Others V. Mohamed Abdi Ogle. I have no doubt that I have the jurisdiction to grant prayer 4 of the Chamber Summons herein.
I note that these proceedings under Judicial Review are intertwined with a matter now pending in the High Court, i.e. Misc. Civil Application No. 272 of 1999. The subject matter in both cases is land and whether or not the title references are correct is of no consequence at this stage as the hearing in both cases is yet to be reached.
Suffice is to say that, if the 2nd and 3rd Respondents are not restrained as sought by the applicants the remedies sought maybe rendered nugatory. To that extent I, with respect, agree with the learned counsel for the applicants.
One last observation; one would be right to observe that the respondents are overzealous in pursuing the applicants yet there is a civil matter under civil jurisdiction which is yet to be resolved.
Whatever the case, they the respondents, should not be seen to be taking sides in a matter that is still pending before the court.
Be that as it may, I am satisfied that prayer No. 4 of the Chamber Application filed by the applicant should be granted. It is accordingly ordered.
The costs shall be in the cause.
Orders accordingly.
Delivered and dated at Nairobi this 30th day of April, 1999.
A. MBOGHOLI MSAGHA
JUDGE
Mr. Maseki for the applicant
Mr. Bwononga for the Respondents
Ruling delivered.
A. MBOGHOLI MSAGHA
JUDGE