[2004] KEHC 1145 (KLR)
The court held that the invocation of constitutional rights, particularly where the applicant alleges violations of fundamental rights and seeks a conservatory order affecting his liberty, renders the matter urgent and deserving of priority. The novelty or uniqueness of the application does not diminish its urgency...
Source-derived case information.
- Citation
- [2004] KEHC 1145 (KLR)
- Parties
- Plaintiff: Kamau John Kinyanjui; Defendant: The Honourable Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1176 of 2004
- Procedural Posture
- Civil Case / Ruling on Certification of Urgency and Directions for Hearing
- Outcome
- Application certified as urgent; directions given for priority hearing and applicant's production.
- Legal Topics
- Conservatory Orders, Fundamental Rights, Constitutional Reference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamau John Kinyanjui
Plaintiff
The Honourable Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Certification of Urgency and Directions for Hearing
Legal Issues
- 1 Whether the application for a conservatory order pending the hearing of the constitutional reference should be certified as urgent.
- 2 Whether the applicant, convicted and imprisoned, is entitled to be present at the hearing of his constitutional application.
- 3 Whether the novelty or uniqueness of the application affects its urgency or the court's jurisdiction.
Ratio Decidendi
The court held that the invocation of constitutional rights, particularly where the applicant alleges violations of fundamental rights and seeks a conservatory order affecting his liberty, renders the matter urgent and deserving of priority. The novelty or uniqueness of the application does not diminish its urgency or the court's duty to enforce constitutional rights. The court certified the application as urgent, directed that it be heard on a priority basis, and ordered the applicant's production for the hearing, subject to security considerations.
Court Disposition
Application certified as urgent; directions given for priority hearing and applicant's production.
Orders
- The Chamber Summons dated 29th October, 2004 is certified as urgent and shall be heard on a priority basis.
- The application shall be heard on 16th November, 2004.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
HIGH COURT CIVIL CASE NO.1176 OF 2004
KAMAU JOHN KINYANJUI ................................................PLAINTIFF
VERSUS
THE HONOURABLE ATTORNEY GENERAL..............DEFENDANT
RULING
I have read the Certificate of urgency and had a quick look at the Chamber Summons dated 29th October, 2004 and the affidavit in support thereof. I also had occasion to peruse the Originating Summons herein.
Without doubt, the Originating Summons is quite novel and unique in our legal system in Kenya. It is one of a kind. But the Chamber Summons is even more unique and unusual. It seeks to have the Applicant, who has been convicted by the High Court and sentenced to serve a term of 4 years, be released from prison by way of what Counsel refers to as a CONSERVATORY ORDER pending the hearing of the Constitutional Reference. I was referred to theMaharajaoh Case from Trinidad and Tobago of which I am aware though the report was not produced.
Having considered the application for certification and the fixing of an early date for the application., I would say that this matter involves a Constitutional Reference and raises allegations of violations of the Applicant’s fundamental rights as enshrined in the Bill of Rights.
Once a party invokes the Constitution the matter takes a different dimension and assumes a greater significance than the other cases, for the Constitution is the Supreme law in our land.
It is Sanctimonious and this court is the primary enforcer and custodian of the Constitution.In the premises, the novelty, strangeness or unique-ness of the application ought not deter the court from giving this matter the usual urgency and significance accorded to Constitutional matters.
If there is a possible remedy under the Originating Summons it will be the Constitutional Court which will determine the matter as intended by the Applicant. It is not for me to go into the merits or possible outcome, etc.
Since the application touches on the liberty of the Applicant and he is convinced that he is entitled to a conservatory order for his release then the matter certainly is urgent.
I therefore do hereby certify the Application as urgent and direct that a date be given by this court on priority basis.
The Applicant desires to be present at the hearing. This matter touches on his claimed or perceived Constitutional rights. The application herein is his property and unless there are any security risks he is entitled to be present.
I therefore make the following orders:-
1. That the Chamber Summons dated 29th October, 2004 is hereby certified as urgent and shall be heard on priority basis.
2. That the Application shall be heard on 16th November, 2004
3. The Respondent shall be served with the Application within the next 3 days from today.
4. A production Order shall issue to the Prisons Department and in particular the Officer in Charge of Kamiti Main Prison for the production of the Applicant to enable him attend the hearing of the said Application on 16th November, 2004 and as the court may direct from time to time. This isSUBJECTto Security considerations which if they exist must be notified to or disclosed to the court for any further directions.
Dated and delivered at Nairobi this 2nd day of November, 2004.
MOHAMMED K. IBRAHIM
JUDGE
ORDER:
The Applicant’s Counsel to be supplied with certified copies of the Order which are to be served also on the Attorney General and the Prisons Department. Court charges to be paid as usual.
MOHAMMED K. IBRAHIM
JUDGE