[2017] KEHC 3455 (KLR)
The court held that Order 53 of the Civil Procedure Rules grants discretion to allow applications to be served and heard inter partes before leave is granted, and to determine the question of leave and stay separately. The applicant failed to demonstrate any prejudice that would result from enjoining FKF at this...
Source-derived case information.
- Citation
- [2017] KEHC 3455 (KLR)
- Parties
- Applicant: Moses Adagala; Respondent: Independent Disciplinaries and Complaint Committee; Interested Party: Football Kenya Federation
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 7 of 2017
- Procedural Posture
- Judicial Review Application / Ruling on Application to Enjoin Interested Party at Leave Stage
- Outcome
- application for joinder allowed; FKF enjoined as interested party
- Judges
- TW Cherere
- Legal Topics
- Judicial Review, Joinder of Parties, Leave to Apply, Order 53 Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Adagala
Applicant
Independent Disciplinaries and Complaint Committee
Respondent
Football Kenya Federation
Interested Party
Procedural Posture
Judicial Review Application / Ruling on Application to Enjoin Interested Party at Leave Stage
Legal Issues
- 1 Whether Football Kenya Federation should be enjoined as an interested party at the leave stage of judicial review proceedings.
- 2 Whether the applicant would suffer prejudice if FKF is enjoined before leave is granted.
Ratio Decidendi
The court held that Order 53 of the Civil Procedure Rules grants discretion to allow applications to be served and heard inter partes before leave is granted, and to determine the question of leave and stay separately. The applicant failed to demonstrate any prejudice that would result from enjoining FKF at this stage. In the interest of effective and complete adjudication, the court found it appropriate to allow FKF to be enjoined as an interested party prior to the determination of leave. The application by FKF was therefore allowed, and FKF was joined as an interested party.
Court Disposition
application for joinder allowed; FKF enjoined as interested party
Orders
- Football Kenya Federation is hereby enjoined in this suit as an interested party.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
JUDICIAL REVIEW APPLICATION NUMBER 007 OF 2017
IN THE MATTER OF AN APPLICATION BY MOSES ADAGALA FOR LEAVE TO APPLY FOR ORDERS OF JUDICIAL REVIEW IN THE NATURE OF CERTIORARI & MANDAMUS
AND
IN THE MATTER OF KENYA PREMIER LEAGUE LIMITED
AND
IN THE MATTER OF THE SPORTS ACT
BETWEEN
MOSES ADAGALA…...........................................APPLICANT
VERSUS
IN THE MATTER OF THE INDEPENDENT DISCIPLINARIES
AND COMPLAINT COMMITTEE....................RESPONDENT
RULING
By a chamber summons brought under Order 53 rules 1,2 & 4 of the Civil Procedure Rules, the applicant seeks among others orders leave to apply for an order of Judicial Review in the nature of a certiorari to quash the decision of the respondent delivered on 16th August 2017 in 2 cases involving Kenya Premier League v Muhoroni Youth FC and the applicant.
When the application came up for hearing on 20. 9.17, Ms. Mitei, advocate for Football Kenya Federation (hereinafter referred to as FKF) informed the court that she had filed an application dated 11. 9.17 seeking that FKF be enjoined to this suit as an interested party.
Mr. Odeny, advocate for the applicant opposed the application on the ground that Order 53 rule 3 of the Civil Procedure Rules on the ground that it is aafter leave has been granted that the substantive notice of motion is filed and served on all interested party. In his words, FKF was jumping the gun.
I have considered the rival submission by both counsels. I have also considered the provisions of Order 53 of the Civil Procedure Rules which provide as follows:-
(4) The grant of leave under thisrule to apply for an order ofprohibitionoranorderof certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination ofthe application,or until the judge orders otherwise:
Provided that where the circumstances so require, the judge may direct that the application be served for hearing inter partes before grant ofleave. Provided further that where the circumstances so require the judge may direct that thequestion of leave and whether grant of leave shall operate as stay may be heard and determined separately within seven days.(Emphasis mine)
My understanding of the emphasized part of the rule is that thequestion of leave and whether grant of leave shall operate as staymay be heard and determined separately within seven days.
FKF has indicated that it wished to be enjoined to this application at this stage before the issue of leave and whether leave should operate as a stay is considered. The applicant has not shown that it will suffer any prejudice if FKF is enjoined in this suit.
Consequently and in the interest of effectively and completely adjudicating upon all questions raised, the application dated 11th September 2017 is considered and FKF is hereby enjoined in this suit as an interested party.
DATED AND DELIVERED THIS21stDAY OFSeptember2017
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Felix
Applicant - Mr Odeny
Respondent - N/A
Proposed interested Party -N/A