[2020] KEHC 3672 (KLR)
The court found that the Notice of Motion as drawn was poorly drafted, seeking an ex parte conservatory order pending interpartes hearing, but no further prayer for a conservatory order or relief pending the hearing of the main petition was included. Since the application had already been heard interpartes and no ex...
Source-derived case information.
- Citation
- [2020] KEHC 3672 (KLR)
- Parties
- Applicant: Murang’a Bar Operators Association Self-Help Group; Respondent: County Government of Murang’a
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 8 of 2020
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application (conservatory Orders)
- Outcome
- Interlocutory application dismissed; main petition to be set down for hearing.
- Judges
- K Kimondo
- Legal Topics
- Public Participation, Licensing Fees, Conservatory Orders, County Legislation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Murang’a Bar Operators Association Self-Help Group
Applicant
County Government of Murang’a
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application (conservatory Orders)
Legal Issues
- 1 Whether the petitioner is entitled to a conservatory order restraining the respondent from enforcing increased liquor and trade licence fees under the Murang’a County Finance Act 2018 pending hearing of the petition.
- 2 Whether the application for conservatory orders is properly before the court after interpartes hearing.
Ratio Decidendi
The court found that the Notice of Motion as drawn was poorly drafted, seeking an ex parte conservatory order pending interpartes hearing, but no further prayer for a conservatory order or relief pending the hearing of the main petition was included. Since the application had already been heard interpartes and no ex parte orders had been granted earlier, the motion was rendered redundant. The court therefore dismissed prayer number 2 of the Notice of Motion and declined to grant any conservatory orders. The court further directed that the main petition be set down for early hearing, with costs to abide the outcome of the petition.
Court Disposition
Interlocutory application dismissed; main petition to be set down for hearing.
Orders
- Prayer number 2 of the Notice of Motion is dismissed.
- The main petition is to be allocated an early hearing date.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MURANG’A
CONSTITUTIONAL PETITION NO. 8 OF 2020
MURANG’A BAR OPERATORS ASSOCIATIONSELF-HELP GROUP........PETITIONER
VERSUS
COUNTY GOVERNMENT OF MURANG’A.................................................RESPONDENT
RULING
1. The petitioner is a Self-help Group registered by the Ministry of Labour, Social Security and Services.
2. It has brought the Petition through its chairman, Simon Njoroge, to restrain the respondent from harassing its members or closing down their businesses.
3. The core of the dispute is payment of liquour and licence fees under the Murang’a County Finance Act 2018. The petitioner contends that the Act increased the fees by over 100% without public participation or consultation with the petitioner’s members. They contend that the rates are exorbitant and will ruin their businesses.
4. The Petition is dated 17th March 2020 and is pending for hearing. In the meantime, the petitioner lodged a Notice of Motion of even date praying for a conservatory order in the following terms:
i. [spent]
ii. That pending interparties hearing, an ex parte conservatory order be issued restraining the respondent from harassing the applicants and bar [sic] either by way of closing down their business premises and/or demanding for payment of liquour and trade licence fees as per the Murang’a County Finance Act 2018.
iii. That such further or other orders issue to facilitate the joint expeditious and fair determination of this petition. [underlining added]
5. The application and petition is contested. There are Grounds of Opposition dated 14th July 2020 and a Reply to the Petition of even date.
6. Both parties filed skeleton submissions on 11th June 2020 and 15th July 2020 respectively. On the latter date, I heard the motion interparties.
7. I desist from commenting on the merits of the petition. But I find that the Notice of Motion as drawn is a classic case of poor draftsmanship: As I have underlined, the petitioner seeks the following: “pending interparties hearing, an ex parte conservatory order be issued restraining the respondent…”.
8. There is no further prayer for a conservatory order or any relief pending the hearing of the main petition. The application having been heard interparties, and there having been no grant of any earlier orders ex parte, the instant motion is now plainly redundant.
9. Prayer number 2 of the Notice of Motion is accordingly dismissed. Regarding the remainder of the motion, the petitioner only seeks “such further or other orders issue to facilitate the joint expeditious and fair determination of this petition”. In the interests of justice; and, noting that the respondent has replied, I will now allocate an early hearing date for the main petition.
10. Costs shall abide by the judgment in the petition.
It is so ordered.
DATED, SIGNED and DELIVERED at MURANG’Athis 30th day of July 2020.
KANYI KIMONDO
JUDGE
Ruling read in open court in the presence of:
No appearance by counsel for the petitioner.
Mr. Waweru holding brief for Mr. Kimwere for the respondent instructed by Kimwere Josphat & Company Advocates.
Ms. Dorcas Waichuhi & Ms. Susan Waiganjo, Court Assistants.