[2014] KEHC 3830 (KLR)
The court found that the applicant had demonstrated sufficient grounds for leave to institute judicial review proceedings, as the respondent did not deny the actions complained of and the applicant had an arguable case regarding the alleged trespass. The court further held that it was appropriate to grant a stay to...
Source-derived case information.
- Citation
- [2014] KEHC 3830 (KLR)
- Parties
- Applicant: Kipsigis Highlands Multipurpose Co-operative Society Ltd; Respondent: The County Government of Bomet
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 3 of 2011
- Procedural Posture
- Judicial Review / Ruling on Leave Application and Stay
- Outcome
- Leave granted to institute judicial review proceedings; leave to operate as a stay for 60 days.
- Legal Topics
- Judicial Review Leave, Prohibition Orders, Public Land Access, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kipsigis Highlands Multipurpose Co-operative Society Ltd
Applicant
The County Government of Bomet
Respondent
Procedural Posture
Judicial Review / Ruling on Leave Application and Stay
Legal Issues
- 1 Whether the applicant should be granted leave to institute judicial review proceedings for orders of prohibition against the respondent.
- 2 Whether the leave granted should operate as a stay restraining the respondent from further acts on the applicant's land.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for leave to institute judicial review proceedings, as the respondent did not deny the actions complained of and the applicant had an arguable case regarding the alleged trespass. The court further held that it was appropriate to grant a stay to restrain the respondent from carrying out further activities on the applicant's land for a limited period (60 days), pending the hearing of the substantive motion, to prevent potential harm to the applicant and preserve the status quo.
Court Disposition
Leave granted to institute judicial review proceedings; leave to operate as a stay for 60 days.
Orders
- Leave is granted to the applicant to institute judicial review proceedings.
- The leave granted shall operate as a stay for 60 days restraining the respondent from carrying out further activities on LR.No. 7797/3 South of Kericho Municipality detrimental to the applicant pending interpartes hearing of the substantive motion.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
JUDICIAL REVIEW NO. 3 OF 2014(JR)
KIPSIGIS HIGHLANDS MULTIPURPOSE
CO-OPERATIVE SOCIETY LTD...................APPLICANT
VERSUS
THE COUNTY GOVERNMENT OF
BOMET …...........................................RESPONDENT
RULING
Pursuant to an application for Chamber Summons seeking Leave to institute Judicial review proceedings filed on 15th April, 2014 together with Affidavit verifying the facts and statements. Leave was not granted exparte and the applicant was directed to serve the application for interpartes hearing on 29th May, 2014 under Order 53 Rule(4). He was further granted Leave to file a Supplementary Affidavit.
During interpartes hearing on 23rd June, 2014 counsel for the respondent Mr. Matwere sought time to file a Replying affidavit. Mr. Orina did not object and the court granted the respondent two days to file his response.
The application came up for hearing before me on 26th June, 2013. Mr. Orina, counsel for the applicant urged this court to grant leave to the applicant to file a motion for Judicial review for orders of Prohibition against the respondent through its agents, employees, servants or otherwise from trespassing onto the Applicant's LR.NO. 7797/3 South of Kericho Municipality. He also sought that leave so granted do operate as a stay of the respondent's acts complained of or further acts of trespass untill further orders of the court.
He submitted that the respondent in their Replying Affidavit sworn by Langat Kipkosgei on 24th June, 2014, did not deny that the respondent had carried out the said actions for the reason that the access road was a public road as per the National Government map.
Mr. Matwere counsel for the respondent did not object to the granting of Leave to institute the proceedings but submitted that there was nothing to be stayed as the public road had been in existence for a long time and was only been upgraded. This had already been done and the orders of stay would be futile.
In response Mr. Orina urged the court to grant a stay to stop the respondent from carrying out further actions detrimental to the Plaintiff.
After listening to both counsels, I am satisfied that the action complained off by the applicant was undertaken by the respondent and Leave is hereby granted to institute judiciary review proceedings.
I further order that the leave granted do operate as a stay for 60 days restraining the respondent from carrying out further activities on LR.No. 7797/3 South of Kericho Municipality detrimental to the Applicants pending interparties hearing of the substantiative motion.
Dated, Signed and Delivered at Kericho on this 26th day of June 2014
L.N. WAITHAKA
JUDGE
In the presence of:
Mr. Orina for the Plaintiff/Applicant
N/A for the Respondent