[2011] KEHC 2035 (KLR)
The court found that the applicant had not taken any legal action to challenge the legality of the nominations of the interested parties and had not responded to the respondent's affidavit evidence. The alleged illegality of the nominations is the substantive issue to be determined in the main motion, and it would...
Source-derived case information.
- Citation
- [2011] KEHC 2035 (KLR)
- Parties
- Applicant: Councillor Patrick Makasi Muindi; Respondent: The Municipal Council of Kitui
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 169 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- CM Kariuki
- Legal Topics
- Illegality of Nominations, Municipal Governance, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Councillor Patrick Makasi Muindi
Applicant
The Municipal Council of Kitui
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the nominations of the fifth, sixth, seventh, ninth and tenth Interested Parties on 2nd June 2009 were illegal.
- 2 Whether the applicant is entitled to an order of stay based on alleged illegality of nominations pending the substantive motion.
Ratio Decidendi
The court found that the applicant had not taken any legal action to challenge the legality of the nominations of the interested parties and had not responded to the respondent's affidavit evidence. The alleged illegality of the nominations is the substantive issue to be determined in the main motion, and it would be inappropriate to grant a stay at the interlocutory stage on that basis. The court held that if illegality is established in the substantive hearing, appropriate orders, including nullification of elections and fresh elections, can be made. Therefore, the application for a stay was dismissed.
Court Disposition
application dismissed
Orders
- Prayer No.6 in the Chamber Summons filed on 8th July 2011 is denied and dismissed.
- The cost of the application be in the main.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
HC.MISC. CASE NO.169 OF 2011
COUNCILLOR PATRICK MAKASI MUINDI.............................................................APPLICANT
VERSUS
THE MUNICIPAL COUNCIL OF KITUI..........................................................1ST RESPONDENT
RULING
I have listened carefully to the several arguments advanced by both learned counsel for the applicant and the 1st Respondent.
On behalf of the Applicant, the court has been urged that the fifth, sixth, seventh, ninth and tenth Interested Parties were nominated illegally on the 2nd June, 2009. The Applicant take issue with them having participation in the actions which were placed at the AGM held on the 4th July, 2011.
In reply, the 1st Respondent has filed replying affidavit of the Town Clerk Lucy Waema and I have noted the contents of Paragraphs 5 and 6 thereof in particular. The Applicant has not sought leave to file a further affidavit in reply to the matters deponed to therein. He admits that he has not taken any legal action to challenge the legality of the nominations of the said Interested Party. The fact that he was not a party to the proceedings referred to in Paragraph 6 of the replying affidavit does not mean that any orders made in the judgment would not find the 1st Respondent.
I am not persuaded that the court should grant an order of stay on the basis on the arguments that the nominations were illegality because that is the very essence to be detained in the substantive motion. If the court finds that an illegality has indeed occurred, the court will nullify the elections and order that fresh elections take place. In the result, prayer No.6 in the Chamber Summons filed on the 8th July, 2011 is denied and dismissed.
The cost of the application be in the main.
Dated and delivered at Machakos this 13thday of July, 2011 at 6. 10 p.m.
P. Kihara Kariuki
Judge