[2017] KEELC 938 (KLR)
The court declined to grant a stay at the ex parte stage, holding that the operation of leave as a stay is discretionary and not automatic under Order 53 Rule 4 of the Civil Procedure Rules. The court further reasoned that granting a stay could potentially conflict with the independent constitutional mandate of the...
Source-derived case information.
- Citation
- [2017] KEELC 938 (KLR)
- Parties
- Applicant: Kaluma M'Mwereria; Respondent: The Land Adjudication & Settlement Officer (Igembe District); Respondent: The Land Demarcation Officer (Amwathi Adjudication Section); Respondent: Director of Land Adjudication and Settlement (Nairobi); Respondent: Deputy County Commissioner (Igembe South)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 28 of 2017
- Procedural Posture
- Judicial Review Application / Ruling on Application for Stay Pending Hearing of Main Motion
- Outcome
- Application for stay declined at ex parte stage; issue to be canvassed inter partes.
- Legal Topics
- Judicial Review, Stay of Proceedings, Land Adjudication, Prohibition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kaluma M'Mwereria
Applicant
The Land Adjudication & Settlement Officer (Igembe District)
Respondent
The Land Demarcation Officer (Amwathi Adjudication Section)
Respondent
Director of Land Adjudication and Settlement (Nairobi)
Respondent
Deputy County Commissioner (Igembe South)
Respondent
Procedural Posture
Judicial Review Application / Ruling on Application for Stay Pending Hearing of Main Motion
Legal Issues
- 1 Whether the leave granted to commence judicial review proceedings should operate as a stay of the impugned proceedings.
- 2 Whether granting a stay would conflict with the constitutional powers of the Director of Public Prosecutions.
Ratio Decidendi
The court declined to grant a stay at the ex parte stage, holding that the operation of leave as a stay is discretionary and not automatic under Order 53 Rule 4 of the Civil Procedure Rules. The court further reasoned that granting a stay could potentially conflict with the independent constitutional mandate of the Director of Public Prosecutions under Article 157(10) of the Constitution. The court determined that the issue of stay should be addressed in the main motion, inter partes, to allow all concerned parties, including the respondents and the DPP, an opportunity to be heard. Accordingly, the application for a stay was refused at this preliminary stage.
Court Disposition
Application for stay declined at ex parte stage; issue to be canvassed inter partes.
Orders
- The application for leave to operate as a stay is declined at this stage.
- The issue of stay to be canvassed in the main motion inter partes.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
JUDICIAL REVIEW APPLICATION NO. 28 OF 2017
KALUMA M’MWERERIA……………………...…....…APPLICANT
AND
1. THE LAND ADJUDICATION & SETTLEMENT
OFFICER (IGEMBE DISTRICT)..………......1ST RESPONDENT
2. THE LAND DEMARCATION OFFICER
(AMWATHI ADJUDICATION SECTION)...…2ND RESPONDENT
3. DIRECTOR OF LAND ADJUDICATION
AND SETTLEMENT (NAIROBI)….………...3RD RESPONDENT
4. DEPUTY COUNTY COMMISSIONER
(IGEMBE SOUTH)………..…………………4TH RESPONDENT
RULING
On 1. 11. 17, this Court granted leave for the Ex parte Applicant to bring forth Judicial proceedings as set out in the Chamber Summons filed on 10. 10. 17.
The leave granted was not to operate as a STAY. This is the reason the Ex parte Applicant is back in Court seeking that the leave granted do leave operate as a stay.
Order 53 r 4 states that:-
“The grant of leave under this rule to apply for an order of Prohibition or Certiorari shall if the Judge so directs operate as a stay of the proceedings in question until the determination of the application or until the Judge orders otherwise”.
Leave operating as a stay is hence not automatic, it is discretionary.
I note that in paragraph 15 of the Statement to accompany the Summons for leave, the Ex parte Applicant has stated that:-
“I seek orders to prohibit O.C.S Maua Police Station from entertaining land complaints and protecting land grabbers through illegal arrest and detention of me and malicious prosecution based on lies from the land grabbers”.
Under the provisions of Article 157 (10) it is provided that:-
“The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority”.
This Court hesitates to grant any Ex parte orders that may tend to be in conflict with a duly established Constitutional Office (the D.P.P)
The issue of STAY is hence to be canvassed in the main motion inter parties so that all concerned parties can get a chance to give their input on the matter.
I therefore decline to grant a stay at this stage.
DELIVERED, DATED AND SIGNED AT MERU THIS 15TH DAY OF NOVEMBER, 2017
IN THE PRESENCE OF:-
CAJanet/Haway
E. Kimathi HB for Kioga for Plaintiff –present
Hon. L. N. MBUGUA
ELC JUDGE