[2021] KECA 899 (KLR)
The Court of Appeal held that there was no valid application before it upon which it could grant the interim reliefs sought by the applicant. The certificate of urgency filed by the applicant did not constitute a formal application, and therefore, the Court lacked a proper basis to entertain or grant the orders...
Source-derived case information.
- Citation
- [2021] KECA 899 (KLR)
- Parties
- Appellant: Patrick Kabundu; Appellant: Mutuma Caleb Mwiti; Appellant: Chichi Kimani; Respondent: Mombasa County Government; Respondent: The Governor Mombasa County; Respondent: Mombasa County Public Service Board; Respondent: The Clerk of Mombasa County Assembly; Respondent: The Mombasa County Assembly Committee on Security and Administration through Chairperson; Respondent: The Mombasa County Assembly Committee on Justice and Legal Affairs through Chairperson; Respondent: Mohamed Amir Mombasa Inspectorates Director; Respondent: Director of Public Prosecution; Respondent: The Attorney General; Respondent: The Chief Magistrate Mombasa; Respondent: The Inspector General National Police Service; Respondent: The Mombasa Law Society
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 57 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Certificate of Urgency/application for Interim Relief
- Outcome
- application dismissed
- Judges
- J Karanja, DK Musinga
- Legal Topics
- Interlocutory Applications, Injunctive Relief, Judicial Composition, Revenue Collection Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Patrick Kabundu
Appellant
Mutuma Caleb Mwiti
Appellant
Chichi Kimani
Appellant
Mombasa County Government
Respondent
The Governor Mombasa County
Respondent
Mombasa County Public Service Board
Respondent
The Clerk of Mombasa County Assembly
Respondent
The Mombasa County Assembly Committee on Security and Administration through Chairperson
Respondent
The Mombasa County Assembly Committee on Justice and Legal Affairs through Chairperson
Respondent
Mohamed Amir Mombasa Inspectorates Director
Respondent
Director of Public Prosecution
Respondent
The Attorney General
Respondent
The Chief Magistrate Mombasa
Respondent
The Inspector General National Police Service
Respondent
The Mombasa Law Society
Respondent
Procedural Posture
Civil Appeal / Ruling on Certificate of Urgency/application for Interim Relief
Legal Issues
- 1 Whether the certificate of urgency filed by the applicant constituted a valid application before the Court.
- 2 Whether the Court could grant interim reliefs in the absence of a formal application.
- 3 Whether the applicant should pursue substantive remedies in the lower court or appeal the High Court's interlocutory ruling.
Ratio Decidendi
The Court of Appeal held that there was no valid application before it upon which it could grant the interim reliefs sought by the applicant. The certificate of urgency filed by the applicant did not constitute a formal application, and therefore, the Court lacked a proper basis to entertain or grant the orders requested. The Court further noted that the applicant's recourse lay in pursuing his substantive petition before the lower court or appealing the High Court's interlocutory ruling, rather than seeking relief through an irregular procedure. Consequently, the purported application was dismissed for want of a proper application, and no orders as to costs were made.
Court Disposition
application dismissed
Orders
- The certificate of urgency dated 24th May 2019 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
52 paragraphs
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: W. KARANJA, MUSINGA, GATEMBU JJ.A.)
CIVIL APPEAL NO. 57 OF 2019
BETWEEN
PATRICK KABUNDU...........................................................1STAPPELLANT
MUTUMA CALEB MWITI...................................................2NDAPPELLANT
CHICHI KIMANI................................................................3RDAPPELLANT
AND
MOMBASA COUNTY GOVERNMENT..........................1STRESPONDENT
THE GOVERNOR MOMBASA COUNTY.....................2NDRESPONDENT
MOMBASA COUNTY PUBLIC SERVICE BOARD.....3RDRESPONDENT
THE CLERK OF MOMBASA COUNTY ASSEMBLY....4THRESPONDENT
THE MOMBASA COUNTY ASSEMBLY COMMITTEE
ON SECURITY AND ADMINISTRATION
THROUGH CHAIRPERSON.........................................5THRESPONDENT
THE MOMBASA COUNTY ASSEMBLY
COMMITTEE ON JUSTICE AND
LEGAL AFFAIRS THROUGH CHAIRPERSON...........6THRESPONDENT
MOHAMED AMIRMOMBASA
INSPECTORATES DIRECTOR......................................7THRESPONDENT
AND
DIRECTOR OF PUBLIC PROSECUTION..........1STINTERESTED PARTY
THE ATTORNEY GENERAL..................................2NDINTERESTED PARTY
THE CHIEF MAGISTRATE MOMBASA..............3RDINTERESTED PARTY
THE INSPECTOR GENERAL
NATIONAL POLICE SERVICE............................4THINTERESTED PARTY
THE MOMBASA LAW SOCIETY.........................5THINTERESTED PARTY
(Being an appeal from the ruling of the High Court of Kenya at Mombasa (E.K. Ogola, J.) delivered on 9thMay, 2019
in
Mombasa High Court Petition No. 195 of 2018)
*******************
RULING OF THE COURT
1. The applicant, Patrick Kabundu, who appears in person, is aggrieved by a ruling of the High Court (E.K. Ogola, J.) delivered at Mombasa on 9th May 2019 dismissing his application dated 11th July 2018 in which he had sought, among other orders, that his petition should be heard by an uneven number of judges; that a temporary injunction should be issued to restrain the respondents “from collecting any revenue arising out of violation of the county legislation”et al.
2. He filed a notice of appeal dated 15th May 2019 and a draft memorandum of appeal dated 24th May 2019 in which he faults the learned Judge for what he terms as failure to implement the directive given by the Registrar of the Judiciary on revenue collection.
3. Thereafter the applicant presented to this Court a Certificate ofUrgency dated 24th May 2019 without any accompanying application. Although it is not clear what exactly he seeks, we surmise that his certificate of urgency is intended to be an application for the very reliefs that were declined by the High Court.
4. Paul Buti, learned counsel for the 1st to 4th respondents submitted, quite rightly, that there is no application before the Court on the basis of which his clients can respond. For the 5th to 7th respondent, learned counsel Elizabeth Kisingo submitted, without expounding, that the ‘application’ “has been overtaken by events considering that Appeal No. 91 which relates to the present Appeal.”We are equally unable to comprehend the latter statement.
5. All in all, it seems to us that what might be open to the applicant, if he is so minded, and if he has not already done so, is to pursue his substantive petition before the lower court or to pursue his appeal from the interlocutory ruling of the High Court of 9th May 2019.
6. Assuming therefore that the applicant’s certificate of urgency dated24th May 2019 was intended to be an application, the same is hereby dismissed. We make no orders as to costs.
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MARCH, 2021.
W. KARANJA
....................................
JUDGE OF APPEAL
D.K. MUSINGA
......................................
JUDGE OF APPEAL
S. GATEMBU KAIRU, FCIArb
.....................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR