[2009] KEHC 2328 (KLR)
The court found that the applicant had demonstrated an arguable case for judicial review, justifying the grant of leave to file for orders of certiorari, prohibition, and mandamus. The court further held that a stay was warranted to prevent the transmission of the respondent's decision to the Chief Justice, but...
Source-derived case information.
- Citation
- [2009] KEHC 2328 (KLR)
- Parties
- Applicant: Kamau John Kinyanjui; Respondent: The Disciplinary Committee
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 381 of 2009
- Procedural Posture
- Judicial Review Miscellaneous Application / Application for Leave to Commence Judicial Review and for Stay
- Outcome
- Leave granted to file judicial review; conditional stay granted; costs reserved.
- Legal Topics
- Judicial Review, Leave to Apply, Stay of Decision, Disciplinary Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamau John Kinyanjui
Applicant
The Disciplinary Committee
Respondent
Procedural Posture
Judicial Review Miscellaneous Application / Application for Leave to Commence Judicial Review and for Stay
Legal Issues
- 1 Whether the applicant has demonstrated an arguable case warranting leave to commence judicial review proceedings.
- 2 Whether leave should operate as a stay of the respondent's decision pending determination of the substantive motion.
Ratio Decidendi
The court found that the applicant had demonstrated an arguable case for judicial review, justifying the grant of leave to file for orders of certiorari, prohibition, and mandamus. The court further held that a stay was warranted to prevent the transmission of the respondent's decision to the Chief Justice, but limited the stay to this specific action and made it conditional upon timely filing and service of the substantive motion. The absence of opposition from the respondent and the potential prejudice to the applicant if the decision was transmitted before the motion was heard were key considerations.
Court Disposition
Leave granted to file judicial review; conditional stay granted; costs reserved.
Orders
- Leave is granted to the applicant to file judicial review proceedings for certiorari, prohibition and mandamus. The Notice of Motion will be filed and served within 15 days from today.
- The leave above will operate as a stay of any intended action to transmit the decision of the respondent to the Chief Justice, till the determination of the Notice of Motion to be filed provided the Notice of Motion is filed and served within 15 days, otherwise the stay will automatically lapse.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
JUDICIAL REIEW MISCELLANEOUS CIVIL APPLICATION NO. 382 OF 2009
AND
IN THE MATTER OF THE ADVOCATES ACT, CAP 16, LAWS OF KENYA
AND
IN THE MATTER OF AN APPLICATION BY KAMAU JOHN KINYANJUI FOR LEAVE TO APPLY FOR ORDERS OF PROHIBITIONS, CERTIORARI AND MANDAMUS
KAMAU JOHN KINYANJUI……………………………………….. APPLICANT
V E R S U S
THE DISCIPLINARY COMMITTEE…………………………….. RESPONDENT
R U L I N G
This is a Chamber Summons dated 22nd June, 2009 filed by the applicant in person. It is an application for leave to file judicial review proceedings, as well as a request that leave operate as a stay. The applicant has been an advocate of the High Court, and was purportedly convicted by the respondent on 25th August, 2008 – on purported professional misconduct.
I ordered that the application be served for inter-partes hearing. I was told that the same was served but the respondent neither entered appearance nor appeared in court for the hearing. The applicant, in person, made submissions before me.
Having considered the application, documents filed and submissions of the applicant, I am of the view that the applicant has demonstrated an arguable case. I will grant leave.
I also consider that stay is justified, but only to the extent of transmitting the decision to the Chief Justice, since this is something that is intended to be pushed for prohibition.
Consequently, I order as follows-
1. Leave is granted to the applicant to file judicial review proceedings for certiorari, prohibition and mandamus. The Notice of Motion will be filed and served within 15 days from today.
2. The leave above will operate as a stay of any intended action transmit the decision of the respondent to the Chief Justice, till the determination of the Notice of Motion to be filed provided the Notice of Motion is filed and served within 15 days, otherwise the stay will automatically lapse.
3. Costs will follow decision in the Notice of Motion.
Dated and delivered at Nairobi this 20th day of July, 2009.
George Dulu
Judge.