[2011] KEHC 124 (KLR)
The court held that the applicants were not in default for failing to file the substantive notice of motion within 21 days from the date leave was granted, as the proceedings indicated that they were to await the outcome of the application for stay. The 21-day period for filing the substantive application would...
Source-derived case information.
- Citation
- [2011] KEHC 124 (KLR)
- Parties
- Applicant: Maurice Oduor; Applicant: John Maina; Applicant: Habat B Mugangai; Respondent: District Commissioner Njiru; Respondent: Hon. Attorney General; Interested Party: Maria Kirima; Interested Party: Teresia Kirima; Interested Party: Steve Kirima; Interested Party: Wanjau Kirima; Interested Party: John Kamau Kirima
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 72 of 2011
- Procedural Posture
- Judicial Review Miscellaneous Application / Ruling on Prayer for Leave to Operate as Stay
- Outcome
- Prayer for leave to operate as stay declined; directions given for filing substantive application.
- Judges
- CC Kipkorir
- Legal Topics
- Judicial Review, Leave to Apply, Stay of Execution, Eviction Orders, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maurice Oduor
Applicant
John Maina
Applicant
Habat B Mugangai
Applicant
District Commissioner Njiru
Respondent
Hon. Attorney General
Respondent
Maria Kirima
Interested Party
Teresia Kirima
Interested Party
Steve Kirima
Interested Party
Wanjau Kirima
Interested Party
John Kamau Kirima
Interested Party
Procedural Posture
Judicial Review Miscellaneous Application / Ruling on Prayer for Leave to Operate as Stay
Legal Issues
- 1 Whether the applicants failed to file the substantive notice of motion within the prescribed 21 days from the date of granting leave.
- 2 Whether the leave granted should operate as a stay of the eviction pending the hearing of the substantive application.
Ratio Decidendi
The court held that the applicants were not in default for failing to file the substantive notice of motion within 21 days from the date leave was granted, as the proceedings indicated that they were to await the outcome of the application for stay. The 21-day period for filing the substantive application would therefore commence from the date of this ruling. However, the court found that this was not a proper case for granting the prayer for leave to operate as a stay of eviction, and accordingly declined to grant that relief. The applicants were directed to file and serve the substantive notice of motion within 15 days, and the respondents and interested parties were given 15 days from...
Court Disposition
Prayer for leave to operate as stay declined; directions given for filing substantive application.
Orders
- Prayer No.3 of the applicants' chamber summons dated 17th August, 2011 is declined.
- Applicants to file and serve the substantive notice of motion within 15 days from the date of this ruling.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI)
JUDICIAL REVIEW MISC. APPLICATION NO. 72 OF 2011
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDER OF PROBIBITION
AND
IN THE MATTER OF CONSTITION OF KENYA ,THE TREATIES AND CONVENTION LAWS, LAW REFORM ACT AND CIVIL PROCEDURE RULES
IN THE MATTER OF EVICTION BY THE IDSTRICT COMMISSIONER NJIRU
IN THE MATTER OF LAND PARCEL L.R. NO. 5908/8 NAIROBI
IN THE MATTER OF APPLICATION BY NARIDAI MUOROTO SQUATTERS SELF HELP GROUP
BETWEEN
MAURICE ODUOR…………………………….………………….…….………………….1ST APPLICANT
JOHN MAINA ……………………………………....…………………..……………………..2ND APPLICANT
HABAT B MUGANGAI…………………………….......…………………….…………………3RD APPLICANT
(Suing for and on behalf of NARIDAI MUOROTO
SQUATTERS SELF HELP GROUP EXPARTE
VERSUS
DISTRICT COMMISSIONER NJIRU……………………..........…………...……………1ST RESPONDENT
HON. ATTORNEY GENERAL……………………….........…………..……..……………2ND RESPONDENT
AND
MARIA KIRIMA ……………………………...........…………………….…………….……INTERESTED PARTY
TERESIA KIRIMA ……………………….............……………………………..…………..INTERESTED PARTY
STEVE KIRIMA …………………………..........…………………………………………..INTERESTED PARTY
WANJAU KIRIMA ……………………...........…………………………………………….INTERESTED PARTY
JOHN KAMAU KIRIMA ………………..............……………………………….………….INTERESTED PARTY
RULING
The ex-parte applicants were on 22nd August, 2011 granted leave by Wanjiru, J to bring judicial review proceedings. The Judge directed at that time that the prayer for leave to operate as stay be served for inter-partes hearing. This particular prayer came up for argument before me on 15th November, 2011.
I have carefully considered the submissions made by each side and find that if I commit my thoughts on those argument in writing, I will end up prejudicing the substantive application which the applicants intend to file. I only want to address one issue namely that the applicants have failed to file the substantive notice of motion within 21 days from the date of granting leave. Looking at the court proceedings of 22nd August, 2011, I get the impression that the applicants were to await the outcome of the application for stay before taking any further action. It is my view therefore that the 21 days will start running from the date of the delivery of this ruling. I have made my stand on this issue at this stage so that it may not crop up in future.
After carefully considering the submissions made by the advocates for the applicants and interested parties, I find that this is not a proper case for allowing the leave granted to operate as stay. As such I decline to grant prayer No.3 of the applicants’ chamber summons dated 17th August, 2011. The costs of this application will await the outcome of the substantive notice of motion. The applicants are directed to file and serve the substantive notice of motion within 15 days from the date of this ruling. Thereafter the respondents and third parties shall have 15 days from the date of service within which to file their responses. This matter will be mentioned on 30th January, 2012 for further directions.
Dated, signed and delivered at Nairobi this 1st day of December, 2011.
W. K. KORIR
JUDGE