[2009] KEHC 3607 (KLR)
The court found that the applicant had established a prima facie case for the grant of conservatory orders, particularly as the respondent had not opposed the application despite being served. The court recognized its jurisdiction under the Constitution and relevant rules to grant such orders to prevent potential...
Source-derived case information.
- Citation
- [2009] KEHC 3607 (KLR)
- Parties
- Applicant: Kipoki Oreu Tasur; Respondent: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 212 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons for Conservatory Orders Pending Petition
- Outcome
- conservatory orders granted in part
- Legal Topics
- Conservatory Orders, Right to Personal Liberty, Investigation and Prosecution, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kipoki Oreu Tasur
Applicant
The Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons for Conservatory Orders Pending Petition
Legal Issues
- 1 Whether the petitioner is entitled to conservatory orders restraining arrest or prosecution in relation to specified land parcels pending determination of the petition.
- 2 Whether the intended investigation and prosecution amount to harassment and infringement of the petitioner's constitutional rights.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the grant of conservatory orders, particularly as the respondent had not opposed the application despite being served. The court recognized its jurisdiction under the Constitution and relevant rules to grant such orders to prevent potential infringement of fundamental rights, specifically the right to personal liberty. However, the court limited the scope of the conservatory order to restrain arrest or prosecution only up to a specified date, allowing the respondents to continue investigations and record statements from the petitioner. This balanced the need to protect the petitioner's rights with the public...
Court Disposition
conservatory orders granted in part
Orders
- Conservatory orders granted to prevent the respondents from arresting or prosecuting the petitioner in relation to Land Parcel L.R. No. Transmara/Shartuka/920 and 1620 up to 30th September, 2009, unless varied or extended by the court.
- Respondents are at liberty to investigate and record statements from the petitioner.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Petition 212 of 2006
IN THE MATTER OF SECTION 84(1)
IN THE MATTERS OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTIONS 70, 72 AND 75 OF THE CONSTITUTION
BETWEEN
1. KIPOKI OREU TASUR…………………..………..…... PETITIONER
VERSUS
2. THE HON. ATTORNEY GENERAL…................... RESPONDENTS
R U L I N G
Before me is a Chamber Summons dated 14th November, 2008 filed by E.K. Mutua & Company advocates on behalf of the petitioner/applicant. The Chamber Summons was filed following the filing of a PETITION, which was filed on 27th April, 2006. The Chamber Summons was filed under rule 20 and 21 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006. The substantive orders sought in this Chamber Summons application is prayer 2 as follows-
THATa conservatory order be issued to prevent the Respondent from arresting or prosecuting the Petitioner herein in relation to Land Parcel L.R. No. Transmara/Shartuka/920 and 1620, pending the hearing and determination of the Petition herein.
The application was filed with a supporting affidavit sworn by the applicant on 14th November, 2008. What was deponed in the said affidavit was that the applicant was informed by his wife on 11th November, 2008 that he was required to report to the CID at Kilgoris Police Station, and he went to the said police station on the same date, and was informed that he had to record a statement in connection with L.R. No. Transmara/Shartuka/920 and 1620, while he had already recorded a statement on same in June, 2005.
Though the application was served on the Attorney-General on 21st November, 2008, he neither entered appearance or appeared in court on the hearing date, which was 28th November, 2008. At the hearing, Mr. Mutua for the applicant addressed me.
Under rule 20 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High CourtPractice and Procedure Rules, 2006, L.N. No. 6 of 2006, this court has jurisdiction to grant conservatory orders.
I observe that in the Petition, the applicant has asked for a declaration that the action to investigate and prosecute him amounts to harassment and infringes upon his rights to personal liberty. The Attorney-General has not bothered to file any papers in opposition to the application, though he was served. The application will succeed.
In the circumstances of this case, I will grant limited conservatory orders.
Consequently, I order as follows-
1. I grant conservatory orders to prevent the Respondents from arresting or prosecuting the petitioner herein in relation to Land Parcel L.R. No. Transmara/Shartuka/920 and 1620 up to 30th September, 2009, unless varied or extended by this court.
2. The respondents are however at liberty to investigate and record statements from the petitioner.
It is so ordered.
Dated and delivered at Nairobi this 4th day of March, 2009.
GEORGE DULU
JUDGE.
In the presence of-
Ms. Nthuku for applicant
Mr. Kirori for respondent