[2007] KEHC 3436 (KLR)
The court held that consolidation of judicial review proceedings is not permitted under Order 53 of the Civil Procedure Rules. Instead, the proper course is to have the suit filed first in time proceed to hearing while the other is stayed. On the issue of contempt, the court found that the applicant failed to prove...
Source-derived case information.
- Citation
- [2007] KEHC 3436 (KLR)
- Parties
- Applicant: Republic; Respondent: Hon. Attorney General; Respondent: District Land Registrar Nyeri District; Respondent: Joseph Kihara Gitui; Respondent: Moses Kinaichu Mugenyo; Respondent: Kimotho Hiuhu; Respondent: Kinyua Hiuhu; Respondent: Wanjweni Kangeri; Respondent: Giakaburi/Kanjikeru Self Help Group
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 146 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- Application partly allowed and partly dismissed.
- Legal Topics
- Judicial Review, Contempt of Court, Land Registration, Access Roads
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Hon. Attorney General
Respondent
District Land Registrar Nyeri District
Respondent
Joseph Kihara Gitui
Respondent
Moses Kinaichu Mugenyo
Respondent
Kimotho Hiuhu
Respondent
Kinyua Hiuhu
Respondent
Wanjweni Kangeri
Respondent
Giakaburi/Kanjikeru Self Help Group
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether consolidation of two judicial review proceedings is permissible under Order 53 Civil Procedure Rules.
- 2 Whether the acts complained of amount to contempt of court warranting sanctions against the respondents.
Ratio Decidendi
The court held that consolidation of judicial review proceedings is not permitted under Order 53 of the Civil Procedure Rules. Instead, the proper course is to have the suit filed first in time proceed to hearing while the other is stayed. On the issue of contempt, the court found that the applicant failed to prove the alleged acts of contempt, particularly in light of the respondents' replying affidavit. Consequently, the prayers relating to contempt were dismissed with costs to the respondents.
Court Disposition
Application partly allowed and partly dismissed.
Orders
- Civil Misc. 146 of 2005 is stayed pending hearing and determination of Misc. 96 of 2005.
- Prayers relating to contempt are dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL MISCELLANEOUS 146 OF 2005
IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW
AND
IN THE MATTER OF THE LETTER BY DISTRICT LAND REGISTRAR NYERI DISTRICT PURPORTING TO CREATE AN ACCESS ROAD ON LAND PARCELS NO. MAGUTU/GATEI/444 AND 445
AND
IN THE MATTER OF A GROUP CALLING ITSELF THE GIAKABURI/KANJIKERU SELF HELP GROUP
AND
IN THE MATTER OF LAND PARCELS NUMBER MAGUTU/GATEI/444 & 445 AND
IN THE MATTER OF AN APPLICATION FOR MANDAMUS, CERTIORARI & PROHIBITION
REPUBLIC………………………………………………………………APPLICANT
VERSUS
THE HON. ATTORNEY GENERAL………………………….1ST RESPONDENT
THE DISTRICT LAND REGISTRAR NYERI DISTRICT....2ND RESPONDENT
JOSEPH KIHARA GITUI……………………………….…….3RD RESPONDENT
MOSES KINAICHU MUGENYO………………………...……4TH RESPONDENT
KIMOTHO HIUHU………………………………………….…..5TH RESPONDENT
KINYUA HIUHU…………………………………………..…….6TH RESPONDENT
WANJWENI KANGERI…………………………………...…..7TH RESPONDENT
GIAKABURI/KANJIKERU SELF HELP GROUP…………..8TH RESPONDENT
RULING
Application dated 1/8/2006 seeks 6 orders. The first for consolidation of this suit and another High Court No.96 of 2005 both suits are said to be between same parties and that subject matter is the same. These proceedings are state proceedings and the procedure applicable is that set out under Order 53 Civil Procedure Rules. There is no room for consolidation in these proceedings. However I order that the first in time be heard first while the second is stayed in the meantime.
It is therefore ordered that this suit No. Civil Misc. 146 of 2005 be stayed while Misc. 96 of 2005 do proceed to hearing and determination. This order covers prayer 1, 4, & 6 on prayer 2, 3.
I have perused the application and supporting affidavit. I do not find the acts of contempt complained of proved and in view of the Replying Affidavit of the alleged contemnors I am not satisfied that breach of court order is proved.
I therefore do not allow the application in respect of prayers on contempt. The same are dismissed with costs to the Respondents.
It is so ordered.
Dated this 13th November, 2007.
J. N. KHAMINWA
JUDGE