[2023] KEHC 21866 (KLR)
The court found that the 1st and 3rd Respondents had provided sufficient justification for the grant of an interim stay of the conservatory orders issued on April 26, 2023. The justification was based on the need to comply with funding timelines, which would be adversely affected if the conservatory orders remained...
Source-derived case information.
- Citation
- [2023] KEHC 21866 (KLR)
- Parties
- Applicant: Josephat Kazeh Omwando; Respondent: Principal, Secretary, Ministry of Health; Respondent: Cabinet Secretary, Ministry of Health; Respondent: The Hon. Attorney General; Respondent: Head, National Laboratory Services; Respondent: Head, National Aids & STI’S Control Programme; Respondent: Director, Medical Services Preventive & Promotive Health; Respondent: Head, Malaria Control Programme; Interested Party: Leonard Kingwara; Interested Party: Nelson Otwoma
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition E037 of 2022
- Procedural Posture
- Constitutional Petition / Interlocutory Application for Stay of Conservatory Orders Pending Inter Partes Hearing
- Outcome
- Interim stay of conservatory orders granted pending inter partes hearing of the application.
- Judges
- OA Sewe
- Legal Topics
- Conservatory Orders, Stay of Execution, Review of Orders, Urgent Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephat Kazeh Omwando
Applicant
Principal, Secretary, Ministry of Health
Respondent
Cabinet Secretary, Ministry of Health
Respondent
The Hon. Attorney General
Respondent
Head, National Laboratory Services
Respondent
Head, National Aids & STI’S Control Programme
Respondent
Director, Medical Services Preventive & Promotive Health
Respondent
Head, Malaria Control Programme
Respondent
Leonard Kingwara
Interested Party
Nelson Otwoma
Interested Party
Procedural Posture
Constitutional Petition / Interlocutory Application for Stay of Conservatory Orders Pending Inter Partes Hearing
Legal Issues
- 1 Whether the court should grant a stay of conservatory orders issued on April 26, 2023, pending inter partes hearing of the application.
- 2 Whether sufficient justification exists for interim stay to enable compliance with funding timelines.
Ratio Decidendi
The court found that the 1st and 3rd Respondents had provided sufficient justification for the grant of an interim stay of the conservatory orders issued on April 26, 2023. The justification was based on the need to comply with funding timelines, which would be adversely affected if the conservatory orders remained in force. The court, therefore, exercised its discretion to grant a stay of the conservatory orders pending the hearing and determination of the application inter partes. The court also gave directions for the filing of responses and written submissions to ensure expeditious disposal of the application.
Court Disposition
Interim stay of conservatory orders granted pending inter partes hearing of the application.
Orders
- An order of stay is granted in respect of the conservatory orders issued on April 26, 2023, pending hearing and determination of the application inter partes.
- Responses to the application to be filed within 7 days from the date of the ruling.
Full Case Text
Judgment text and source record
36 paragraphs
Omwando v Principal, Secretary, Ministry of Health & 6 others; Kingwara & another (Interested Parties) (Constitutional Petition E037 of 2022) [2023] KEHC 21866 (KLR) (21 August 2023) (Ruling)
Neutral citation: [2023] KEHC 21866 (KLR)
Republic of Kenya
In the High Court at Mombasa
Constitutional Petition E037 of 2022
OA Sewe, J
August 21, 2023
Between
Josephat Kazeh Omwando
Petitioner
and
Principal, Secretary, Ministry of Health
1st Respondent
Cabinet Secretary, Ministry of Health
2nd Respondent
The Hon.Attorney General
3rd Respondent
Head, National Laboratory Services
4th Respondent
Head, National Aids & STI’S Control Programme
5th Respondent
Director, Medical Services Preventive & Promotive Health
6th Respondent
Head, Malaria Control Programme
7th Respondent
and
Leonard Kingwara
Interested Party
Nelson Otwoma
Interested Party
Ruling
1. The Notice of Motion dated August 11, 2023 was filed by the Attorney General on behalf of the 1st Respondent the Principal Secretary, Ministry of Health. It was brought under Sections 1A and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Order 45 Rule 1 and Order 51 Rules 1 and 4 of the Civil Procedure Rules, 2010, for orders that;(1)Spent(2)Pending the hearing and determination of this Application inter partes, this Court be pleased to grant a stay of the conservatory orders issued on April 26, 2023. (3)Pending the hearing and determination of the Petition dated August 19, 2022, the Court be pleased to review and set aside the conservatory orders issued on April 26, 2023.
2. The matter was placed before the duty Judge on a Certificate of Urgency on August 14, 2023 and directions given for hearing today, the August 21, 2023. Accordingly, what is coming up for consideration is whether Prayer (2) ought to be granted in the interim, pending the hearing and determination of the application inter partes.
3. The application was supported by the affidavit of Mr Harry Kimtai sworn on August 11, 2023 as well as a further Affidavit by the same affiant sworn on August 18, 2023. The application was also supported by the 2nd interested party but was opposed by the Petitioner, who filed a detailed Replying affidavit sworn by him on August 16, 2023.
4. Having perused and considered the application and the pertinent affidavits for the limited purposes of Prayer 2, and having given careful thought to the averments set out at paragraphs 2 and 6 of the Certificate of Urgency as well as paragraphs 16 and 17 of the supporting Affidavit, I am satisfied that sufficient justification has been made by the 1st and 3rd Respondents to warrant the issuance of the Orders prayed for in terms of Prayer 2 of the Notice of motion dated August 11, 2023. Accordingly, it is hereby ordered that:(a)Pending the hearing and determination of this application inter partes, an order of stay be and is hereby granted in respect of the conservatory orders issued by this Court on April 26, 2023 to enable compliance with the funding timelines.(b)Responses to the said application be filed within 7 days from the date hereof.(c)The application shall be canvassed by way of written submissions.(d)The applicant to file and serve written submissions written 14 days from today.(e)The respondent to file and serve written submissions within 14 days from the date of service of the applicant’s written submissions.(f)Mention on September 26, 2023 for highlighting of submissions.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 21STDAY OF AUGUST, 2023OLGA SEWEJUDGE