[2005] KEHC 2365 (KLR)
The court found that the applicant's application was fundamentally defective because it failed to include a specific prayer for leave to apply for judicial review, which is a mandatory procedural requirement. Without such a prayer, the court cannot grant leave, nor can it grant a stay of proceedings that is...
Source-derived case information.
- Citation
- [2005] KEHC 2365 (KLR)
- Parties
- Applicant: Rose Obaga; Respondent: Attorney General of the Republic of Kenya; Defendant: Senior Principal Magistrate, Kisii Law Courts; Defendant: District Criminal Investigation Officer, Kisii Central District; Interested Party: Angeline Onyango Okumu
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 243 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review and Stay of Criminal Proceedings
- Outcome
- application dismissed
- Legal Topics
- Judicial Review, Leave to Apply, Certiorari, Prohibition, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Obaga
Applicant
Attorney General of the Republic of Kenya
Respondent
Senior Principal Magistrate, Kisii Law Courts
Defendant
District Criminal Investigation Officer, Kisii Central District
Defendant
Angeline Onyango Okumu
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review and Stay of Criminal Proceedings
Legal Issues
- 1 Whether the applicant is entitled to leave to apply for judicial review orders of certiorari and prohibition.
- 2 Whether the application as drafted contains a proper prayer for leave to bring judicial review proceedings.
- 3 Whether the court can grant a stay of criminal proceedings where leave to apply for judicial review has not been properly sought.
Ratio Decidendi
The court found that the applicant's application was fundamentally defective because it failed to include a specific prayer for leave to apply for judicial review, which is a mandatory procedural requirement. Without such a prayer, the court cannot grant leave, nor can it grant a stay of proceedings that is contingent upon the grant of leave. The court emphasized that it cannot grant orders that have not been expressly sought in the application. As a result, the application was found to be misconceived and incapable of being granted, leading to its dismissal.
Court Disposition
application dismissed
Orders
- The application is dismissed for want of a proper prayer for leave to apply for judicial review.
- Costs of the application to abide the substantive application for judicial review, if any.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU
Civil Suit 243 of 2004
IN THE MATTER OF AN APPLICATION BY ROSE OBAGA FOR LEAVE TO APPLY FOR JUDICIAL REVIEW (CERTIORARI PROHIBITION)
IN THE MATTER OF THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA
IN THE MATTER OF SENIOR PRINCIPAL MAGISTRATE’S COURT AT KISII
AND
IN THE MATTER OF REPUBLIC
AND
THE ATTORNEY GENERAL ……….………….………….. 1ST RESPONDENT
SENIOR PRINCIPAL MAGISTRATE
KISII LAW COURTS ………………...………………………. 2ND DEFENDANT
DISTRICT CRIMINAL INVESTIGATION
OFFICER KISII CENTRAL DISTRICT ……………………… 3RD DEFENDANT
AND
ROSE OBAGA …………………………………….……………….. APPLICANT
ANGELINE ONYANGO OKUMU …..…………..…………. INTERESTED PARTY
RULING:
The applicant one ROSE OBAGA, an Advocate of High Court of Kenya brought this application under Order 50 rule 1 & 2 of the C.P.R. Mr. Bosire for the applicant submitted that applicant is seeking leave to file application for Judicial Review in form of certiorari and prohibition. The applicant has already been charged vide Kisii Chief Magistrate criminal case No.3488 of 2004. He sought to have the hearing of that criminal case stayed.
I have carefully considered the application. I find that it is misconceived and incapable of being granted. A court cannot grant what is not prayed for. Though Mr. Bosire in his submission stated that the applicant is seeking leave to file judicial review in the application there is no such a prayer in the application.
The application seeks for the following orders:
1. That the matter be certified urgent and the same be heard during chrismas vacation.
2. That the leave so granted by this Honourable court do operate as an order of stay of proceedings in respect of Kisii CMCR Case No.3488 of 2004 between the Republic –versus- Rose K. Obaga, pending the hearing and determination of the intended application.
3. The applicant be at liberty to apply to the honourable court for all necessary and consequential orders that the honourable court may deem fit to grant.
4. Costs of this application do abide the substantive application for Judicial Review.
There is no quarrel with prayer (1). The main prayer is No.2. It talks of “That leave so granted by the court ……” There is no prayer for any leave and as such the applicant cant ask court to order leave not prayed for to operate as stay. To my mind the applicant omitted the most important prayer – that for leave to bring application for judicial review. Prayer 2 in the application does not make any sense the way it is drafted.
I don’t think the applicant can find refuge in prayer 3. She does not say which are the “necessary and consequential orders” which she would want court to grant. Reading that prayer one has the feeling that the applicant expected the court to make other orders after granting leave and that is why she talks of consequential orders. As I have said court cannot grant any leave for none is prayed for and for that reason I find the application has no merit. In the circumstances the same is dismissed.
Dated this 26th April 2005.
KABURU BAUNI
JUDGE
Cc – Mobisa
N/A for applicant (though aware of today’s date)