[2009] KEHC 3452 (KLR)
The court held that after leave to apply for judicial review has been granted and the substantive motion has been filed, any application to set aside the leave is no longer tenable as a separate interlocutory matter. The proper forum for challenging the leave and stay orders is within the substantive motion itself,...
Source-derived case information.
- Citation
- [2009] KEHC 3452 (KLR)
- Parties
- Applicant: Ol Keju Ronkai Limited; Applicant: Emuny Mara Camp Limited; Respondent: The National Environmental Tribunal; Interested Party: Kenya Tourism Federation; Interested Party: National Environmental Management Authority (NEMA)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 111 of 2008
- Procedural Posture
- Judicial Review Application / Ruling on Interlocutory Application to Set Aside Leave and Stay
- Outcome
- Application to set aside leave and stay dismissed; objections to be raised in replying affidavit to substantive motion.
- Judges
- JL Osiemo
- Legal Topics
- Judicial Review Leave, Stay of Proceedings, Environmental Tribunal Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ol Keju Ronkai Limited
Applicant
Emuny Mara Camp Limited
Applicant
The National Environmental Tribunal
Respondent
Kenya Tourism Federation
Interested Party
National Environmental Management Authority (NEMA)
Interested Party
Procedural Posture
Judicial Review Application / Ruling on Interlocutory Application to Set Aside Leave and Stay
Legal Issues
- 1 Whether the application to set aside leave granted for judicial review is tenable after the substantive motion has been filed.
- 2 Whether the leave granted to apply for judicial review and the stay order can be set aside at this stage.
Ratio Decidendi
The court held that after leave to apply for judicial review has been granted and the substantive motion has been filed, any application to set aside the leave is no longer tenable as a separate interlocutory matter. The proper forum for challenging the leave and stay orders is within the substantive motion itself, where all parties can address the merits and procedural propriety of the orders. The court emphasized that at the leave stage, the threshold is only to show an arguable case, and once the court exercises its discretion to grant leave, subsequent challenges must be incorporated into the main proceedings. Accordingly, the court directed the 1st Interested Party to file a replying...
Court Disposition
Application to set aside leave and stay dismissed; objections to be raised in replying affidavit to substantive motion.
Orders
- The 1st Interested Party shall file a replying affidavit to the applicant’s substantive motion, raising any objections including those to the leave and stay orders.
- The orders made on 16th December 2008 granting leave and stay remain in force pending determination of the substantive motion.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT NAIROBI(NAIROBI LAW COURTS)
JR ELECTION CASE 111 OF 2008
OL KEJU RONKAI LIMITED
EMUNY MARA CAMP LIMITED………..........................………….APPLICANTS
VERSUS
THE NATIONAL ENVIRONMENTAL TRIBUNAL…….....……RESPONDENT
KENYA TOURISM FEDERATION…………….…..1ST INTERESTED PARTY
NATIONAL ENVIRONMENTAL
MANAGEMENT AUTHORITY (NEMA)……………2ND INTERESTED PARTY
R U L I N G
In this matter an order for leave to file a judicial review application was made on 16th December 2008 by this court. In addition the court ordered that the leave operates as a stay.
On 22nd January 2009 the 1st Interested Party filed an application by way of Notice of Motion under Order LIII Rule 1 (4) of the Civil Procedure Rules seeking orders:
1. That the order made on 16th December 2008 granting the ex parte Applicants leave to apply for orders of Certiorari, Prohibition an d Mandamus be set aside.
2. That the order made on 16th December 2008 to the effect that such leave does operate as a stay of the proceedings recognition, hearing conduct and/or determination or any other action by the respondent in Tribunal Appeal No NET 30/2008; KENYA TOURISM FEDERATION VERSUS NATIONAL ENVIRONMENTAL TRIBUNAL (NEMA) OLKEJURONKAI LIMITED & EMUNY MARA CAMP LIMITEDbe set aside.
The parties could not agree as to how the two applications could proceed and the court allowed them to address it on the issue. Mr. Gitonga learned Counsel appearing for the 1st Interested Party submitted that his Notice of Motion dated 22nd January 2009 should be heard first because it challenges the very substance and existence of the entire judicial proceedings while Prof Mumma learned Counsel appearing for the Applicant submitted that this is an application to set aside leave granted by this court on 16th December 2008. To hear the application to set aside the leave is an exercise in futility because once a substantive Notice of Motion Application has been filed then an application to set aside leave cannot be entertained.
At leave stage all the Applicant has to do is place before the court materials to demonstrate that he has a prima facie and arguable case.
The test as to whether leave should be granted to an Applicant for judicial review is whether, without examining the matter in any depth there is an arguable case that the reliefs might be granted on the hearing of the substantive application.
Once the court is satisfied that the Applicant has demonstrated that it has an arguable case and has exercised its discretion in favour of the Applicant and has granted leave to file the substantive motion that order for leave is spent and any substantive application to challenge the order made at the leave stage can be canvassed in the substantive motion.
Having come to that conclusion I order that the 1st Interested Party do file a replying affidavit to the Applicant’s substantive motion in which it will be at liberty to challenge any issues raised by the Applicant including the orders made by the court on 16th December 2008 granting leave and that the leave so granted do operate as a stay. Those are the orders of this court.
Dated and delivered at Nairobi this 11th day of June 2009.
J. L. A. OSIEMO
JUDGE