[2014] KEHC 5531 (KLR)
The court found that while the matter was urgent, the circumstances did not justify granting ex-parte conservatory orders without first serving the respondents. The magnitude of the sum involved (USD 12,366,816) was not deemed so imminent as to necessitate immediate ex-parte intervention. The court emphasized the...
Source-derived case information.
- Citation
- [2014] KEHC 5531 (KLR)
- Parties
- Petitioner: The Law Society of Kenya; Respondent: The Cabinet Secretary Treasury; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 213 of 2014
- Procedural Posture
- Constitutional Petition / Ex Parte Interim Application for Conservatory Orders
- Outcome
- Interim ex-parte conservatory orders denied; matter to proceed inter partes.
- Judges
- DAS Majanja
- Legal Topics
- Conservatory Orders, Public Interest Litigation, Foreign Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Law Society of Kenya
Petitioner
The Cabinet Secretary Treasury
Respondent
The Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ex Parte Interim Application for Conservatory Orders
Legal Issues
- 1 Whether interim conservatory orders should issue to stay payment pursuant to a foreign judgment pending inter partes hearing.
- 2 Whether the urgency of the matter justifies ex-parte orders without service to the respondents.
- 3 Whether the foreign judgment is enforceable in Kenya without registration and compliance with natural justice.
Ratio Decidendi
The court found that while the matter was urgent, the circumstances did not justify granting ex-parte conservatory orders without first serving the respondents. The magnitude of the sum involved (USD 12,366,816) was not deemed so imminent as to necessitate immediate ex-parte intervention. The court emphasized the importance of procedural fairness and directed that the petition and application be served on the respondents for inter partes hearing and further directions.
Court Disposition
Interim ex-parte conservatory orders denied; matter to proceed inter partes.
Orders
- Petition and application to be served on the respondents.
- Matter fixed for directions and further orders on 7th May 2014.
Full Case Text
Judgment text and source record
23 paragraphs
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 213 OF 2014
BETWEEN
THE LAW SOCIETY OF KENYA …………..…... PETITIONER
AND
THE CABINET SECRETARY TREASURY..1ST RESPONDENT
THE ATTORNEY GENERAL ....…………. 2ND RESPONDENT
RULING
The matter before the court is a Notice of Motion dated 5th May 2013 and it is founded on a petition dated 5th May 2013. The Law Society acting in public interest seeks, inter alia, the following interim reliefs.
[a] That this application be certified extremely urgent and be
heard ex-parte at the first instance.
[b] That pending the hearing and determination of this
application interpartes conservatory orders do issue staying the decision of the respondents for and on behalf of the Government of Kenya to pay Universal Satspace (North America) LLC, in pursuance of judgment in High Court of Justice Queens Bench Claim No. 2006 Folio 881.
The judgment sought to be stayed is one arising from the now infamous Anglo Leasing contracts which have been the subject of investigations by the Kenya Anti-Corruption Authority, the predecessor to the Ethics and Anti-Corruption Authority.
Mr Mwamu, who appeared with Mr Khamati, urged the court to grant interim relief to prevent the 1st respondent from paying out monies pursuant to the judgment as this would be contrary to the Constitution. He submitted that the judgment was not valid in Kenya as it was not registered, that it was obtained in breach of the rules of natural justice and the Republic of Kenya was denied an opportunity to put forth a formidable defence.
I am alive to the fact that this is an ex-parte hearing and the judge hearing the matter will have the opportunity to assess the pith and substance of the allegations. Whereas I am satisfied that the matter is urgent, I am not convinced that ex-parte orders are merited without service to the respondents. The payment of such a sum in the magnitude of USD 12,366,816/00 is not so imminent as to demand an ex-parte order.
I therefore direct that the petition and application be served on the respondents and the same is fixed for directions and further orders on 7th May 2014.
DATED and DELIVERED at NAIROBI this 5th day of May 2014.
D.S. MAJANJA
JUDGE
Mr Mwamu with him Mr Khamati instructed by Mwamu and Company Advocates for the petitioner ex-parte.