[2021] KEHC 7944 (KLR)
The court found that the public notice challenged by the petitioners had already taken effect by the time the application for conservatory orders was made. As such, granting orders to stay its implementation would be futile. The court further held that there was no urgency in the main motion since the impugned...
Source-derived case information.
- Citation
- [2021] KEHC 7944 (KLR)
- Parties
- Applicant: Joseph Omondi Ochieng; Applicant: Maurice Juma; Applicant: Luke Ocholla; Applicant: William Oduor; Applicant: Silas Owiti; Applicant: Vincent Otieno; Respondent: City Manager-Kisumu; Respondent: Kisumu City Board; Respondent: County Government of Kisumu
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E005 of 2021
- Procedural Posture
- Constitutional Petition / Ruling on Application for Conservatory Orders and Leave to Be Heard During Recess
- Outcome
- Application for conservatory orders declined; leave to be heard during recess granted; directions for service and mention issued.
- Judges
- RE Aburili
- Legal Topics
- Conservatory Orders, Public Notice Challenge, Right to Fair Administrative Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Omondi Ochieng
Applicant
Maurice Juma
Applicant
Luke Ocholla
Applicant
William Oduor
Applicant
Silas Owiti
Applicant
Vincent Otieno
Applicant
City Manager-Kisumu
Respondent
Kisumu City Board
Respondent
County Government of Kisumu
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Conservatory Orders and Leave to Be Heard During Recess
Legal Issues
- 1 Whether the petitioners are entitled to conservatory orders staying the implementation of the public notice dated 19/2/2021.
- 2 Whether the application for conservatory orders is urgent and should be certified as such.
Ratio Decidendi
The court found that the public notice challenged by the petitioners had already taken effect by the time the application for conservatory orders was made. As such, granting orders to stay its implementation would be futile. The court further held that there was no urgency in the main motion since the impugned action had already occurred. Consequently, the application for conservatory orders was not certified as urgent, and the petitioners were directed to serve the respondents for interpartes consideration of the petition and application.
Court Disposition
Application for conservatory orders declined; leave to be heard during recess granted; directions for service and mention issued.
Orders
- Leave granted to the petitioners to be heard during the recess.
- Application for conservatory orders declined for lack of urgency and futility.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CONSTITUTIONAL PETITION NO. E004 OF 2021
ORIGINATING FROM
KISUMU CONSTITUTIONAL PETITION NO. E005 OF 2021
JOSEPH OMONDI OCHIENG.....................................................1ST PETITIONER
MAURICE JUMA...........................................................................2ND PETITIONER
LUKE OCHOLLA...........................................................................3RD PETITIONER
WILLIAM ODUOR........................................................................4TH PETITIONER
SILAS OWITI..................................................................................5TH PETITIONER
VINCENT OTIENO........................................................................6TH PETITIONER
(Suing on their behalf and behalf of the membership of CHOPPIES ROUND
ABOUT BODA BODA YOUTH GROUP, TUFFOAM MALL BODA BODA RIDER
SELF HELP GROUP and all other affected owners of boda bodas, tuk tuks, taxis,
private vehicles and traders within the City Centre and more specifically Oginga Odinga
and Angawa Streets of KISUMU CITY Central Business District (CBD) IN KISUMU COUNTY)
- VERSUS -
CITY MANAGER-KISUMU.........................................................1ST RESPONDENT
KISUMU CITY BOARD..............................................................2ND RESPONDENT
COUNTY GOVERNMENT OF KISUMU..................................3RD RESPONDENT
RULING
1. I have considered the Petitioners/Applicants’ applications for leave to be heard during the recess and the Notice of motion all dated 29/3/2021 seeking for conservatory orders staying implementation of the one day Public Notice dated 19/2/2021 and effective on 22/2/2021 pending the hearing and determination of the Main Petition.
(1) I grant leave to the Applicant/Petitioner to be heard during the recess.
(2) On the motion for Conservatory orders, I observe that the impugned Notice is dated 19/2/2021 and was to take effect on 22/2/2021 which means it has already taken effect.
2. Granting any order staying the taking effect or implementation thereof will be futile as the application has come too late in the day for exparte orders.
3. I therefore find no urgency involved in the Main motion. I decline to certify as urgent the application for Conservatory orders.
4. I direct the Petitioner/Applicant to serve the Respondents with the Petition and the application for interpartes consideration. Mention before the Duty Judge in the new term on 12/4/2021 for further Directions.
5. These proceedings/orders to be typed and submitted to Kisumu High Court forthwith.
6. This file is closed.
DATED, SIGNED AND DELIVERED AT SIAYA, THIS 1ST DAY OF APRIL 2021
R.E. ABURILI
JUDGE