[2020] KEHC 887 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW MISCELLANOUS APPLICATION NO. E061 OF 2020

BETWEEN

REPUBLIC.........................................................................................APPLICANT

VERSUS

BETTING CONTROL AND LICENSING BOARD................1ST RESPONDENT

AND

SAFARICOM LIMITED................................................1ST INTERESTED PARTY

ARTEL NETWORKS KENYA LIMITED.......................2ND INTERESTED PARTY

COMMUNICATIONS AUTHORITYOF KENYA.......3RD INTERESTED PARTY

PEVANS EAST AFRICA LIMITED.............................4TH INTERESTED PARTY

EX PARTE:MILESTONE GAMES LIMITED

RULING NO 2

The Application

1. On 16th November 2020, this Court delivered a ruling in which it made the following orders among others, on an application made by Milestones Games Limited, the ex parte Applicant herein:

a. The ex parte Applicants’ Chamber Summons application dated 9th November 2020 be and is hereby certified as urgent, and is hereby admitted for hearing ex parte and on a priority basis.

b. Theex parte Applicant isgranted leave toapply for an order of Certiorarito move into this Court for purposes of being quashed, a decision of the Respondent to prohibit the Applicant from using the name 'Sportpesa', domain www.ke.sportpesa.com, www.sportpesa.co.ke, short codes 29050 and 79079, Pay Bill numbers 521521, 9555700 and 955700 communicated in its letter referenced BCLB 11/152 VOL.I (9) addressed to the Ex Parte Applicant and dated 30th October 2020.

c. Theex parte Applicant isgranted leave toapply for an order of Certiorarito move into this Court for purposes of being quashed, a decision of the Respondent contained in the letter dated 31st October 2020 Ref No. BCLB 11/152 VOL.I (14) indefinitely and unilaterally suspending the lawfully issued license to the Ex Parte Applicant

d. Theex parte Applicant isgranted leave toapply for an order ofProhibition to prohibit the implementation of the decision of the Respondent barring the Applicant from using the name 'Sportpesa', domain www.ke.sportpesa.com, www.sportpesa.co.ke, short codes 29050 and 79079, Pay Bill numbers 521521, 9555700 and 955700 communicated in its letter referenced BCLB 11/152 VOL.I (9), dated 30th October 2020.

e. Theex parte Applicant isgranted leave toapply for an order ofProhibition to prohibit the implementation of the decision of the Respondent communicated vide letter dated the 31 5t October 2020, Ref No. BCLB 11/152 VOL.I (14) indefinitely suspending the Ex Parte Applicant's license.

f. The grant of leave herein shall operate as a stay of execution and implementation by the Respondent and Interested Partiesof the Respondent's decisions communicated in the letters dated the 30th October 2020 Ref No. BCLB 11/152 VOL.I (9), and 31st October 2020 Ref No. BCLB 11/152 VOL.I (14),pending the hearing and determination of the substantive judicial review application or until further orders by this Court.

2. Further directions and orders were given in the ruling as regards the filing and service of the ex parte Applicant’s substantive Notice of Motion and responses thereto by the Respondent and Interested Parties, and this matter was to come up for inter partes hearing on 25th January 2021. I note in this respect that the ex parte Applicant’s substantive Notice of Motion dated 19th November 2020 is on the record, as is a replying affidavit sworn on 24th November 2020 by the Chairman of the Respondent Board.

3. The ex parte Applicant has now filed a Notice of Motion application dated 2nd December 2020, in which it is seeking the following orders:

1. THAT the Application be certified urgent and be heard ex-parte in the first instance for the reasons of urgency set out in the Certificate of Urgency.

2. THAT the Stay Order issued by the e Court on the 16th November 2020 do apply to stop the implementation of the Respondent'sletter dated the 24th November 2020 Ref No. BCLB 11/152 VOL.I (25) pending the hearing and determination of this matter.

3. THAT the Applicant be granted leave to amend the Notice of Motion dated the 19th November 2020 to apply for an order of CERTIORARI to move into this Court for purposes of being quashed the Respondent's letter dated the 24th November 2020 Ref No. BCLB 11/152 VOL.I (25).

4. THAT the Stay Order be applied to stop the Respondent and Interested Parties from interfering with the Applicant's business and operations pending the hearing and determination of this matter.

5. THAT the Honourable Court be pleased to grant such other or further relief as it may deem fit in the circumstances.

6. THAT the cost of this Application be provided for

4. The grounds for the application are stated in the ex parte Applicant’s supporting affidavit sworn on 2nd December 2020 by Bernard Chauro, the ex parte Applicant’s Operations Manager. In summary, the main grounds are that the Respondent in disrespect to the authority of this Court has purported to withdraw and recall the impugned decisions stayed by the Court, and sought to substitute them with another decision contained in a letter dated the 24th November 2020 Ref No. BCLB 11/152 VOL.I (25) whose import and effect is to undermine the orders issued by the Court on the 16th November 2020. Further, that it is in the interest of justice that this Court deals with the totality of the dispute including the subsequent actions by the Respondents that are aimed at undermining the authority of the Court and illegally frustrate theex parte Applicant's businesses and operations.

5. The ex parte Applicant annexed a copy of the impugned decision made by the Respondent in the letter dated the 24th November 2020.

The Determination

6. I have considered the application dated 2nd December 2020 and the reasons offered in support of the urgency, and I am satisfied that the ex parte Applicant has demonstrated that this matter is urgent. This for reason that the Respondent has indicated in its decision of 24th November 2020 that it intends to act on the subject matter of the dispute herein as from 3rd December 2020, which is today’s date.

7. On the orders of stay sought by the ex parte Applicant, this Court in its ruling of 16th November 2020 explained that the main purpose of a stay is to suspend proceedings that are challenged by a claim for judicial review, and to preserve the status quo pending the final determination of a claim made by an aggrieved party. The ex parte Applicant has provided evidence that during the pendency of the stay orders granted herein on 16th November 2020, the Respondent has taken further actions on the dispute before this Court by its letter dated 24th November 2020. In the circumstances, in order to prevent abuse of the process of Court and in the interests of justice, it is my finding that extension of the stay orders sought is merited and justified.

8. Likewise, in light of the imminent further actions intended by the Respondent on the subject matter of this suit while this matter is pending, and that may have the effect of rendering the ex parte Applicant’s claim nugatory, this Court will consider the prayer for amendment of the substantive Notice of Motion ex parte.

9. This Court is in this regard guided by the overriding objectives that guides its operations in sections 1A and 1B of the Civil Procedure Act, including the just, expeditious and efficient disposal of disputes, and the provisions of section 3A of the Act on this Court’s inherent powers to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the court.

10. In addition, the provisions ofOrder 53 Rule 4(2) Civil Procedure Rules provides as follows:

“4. (2) The High Court may on the hearing of the motion allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising out of the affidavits of any other party to the application, and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he shall give notice of his intention and of any proposed amendment of his statement, and shall supply on demand copies of any such further affidavits.”

11. While a plain reading of the rule indicates that only a statement may be amended, if a relief sought in the statutory statement is amended, then the substantive notice of motion will also require to be amended as well. This Court therefore has power and discretion to allow an amendment of a substantive Notice of Motion in judicial review proceedings in light of the foregoing provisions of the law. In addition, no prejudice will be caused to the Respondent and Interested Parties by an amendment, as they will be accorded an opportunity to respond to any new pleadings filed by the ex parte Applicant.

The Orders

12. In light of the foregoing observations and findings, the ex parte Applicants’ Notice of Motion application dated 2nd December 2020 is found to be merited to the extent of the following orders:

I. The ex parte Applicants’ Notice of Motion application dated 2nd December 2020 be and is hereby certified as urgent, and is hereby admitted for hearing ex parte and on a priority basis.

II. Theex parteApplicant isgranted leave toamend the Notice of Motion dated the 19th November 2020, to apply for an additional order of CERTIORARI to move into this Court for purposes of being quashed the Respondent's letter dated the 24th November 2020 Ref No. BCLB 11/152 VOL.I (25), and shall file and serve the Amended Notice of Motion within seven (7) days of today’s date.

III. The stay orders granted herein on 16th November 2020 are hereby varied and extended to the extent that the leave granted herein shall operate as a stay of execution and implementation by the Respondent and Interested Partiesof: (a) the Respondent's decisions communicated in the letters dated the 30th October 2020 Ref No. BCLB 11/152 VOL.I (9) and 31st October 2020 Ref No. BCLB 11/152 VOL.I (14); and (b) the Respondent’sletter dated the 24th November 2020 Ref No. BCLB 11/152 VOL.I (25). The leave granted herein shall also operate as a stay of any other action by theRespondent and Interested Parties that will interferewith the ex parte Applicant's business and operations,pending the hearing and determination of the ex parte Applicant’s Amended Notice of Motion application or until further orders by this Court.

IV. The costs of the ex parte Applicant’s Notice of Motion dated 2nd December 2020 shall be in the cause.

V. The ex parte Applicant shall file and serve the Respondent and Interested Parties with (i) Notice of Motion dated 2nd December 2020; (ii) the Amended Notice of Motion, Amended Statutory statement, and Further Affidavit if need be; (iii) a copy of this ruling; and (v) a hearing notice, within fourteen (14) days from today’s date.

VI. The Respondent and Interested Parties are granted leave to file and serve their responses to the ex parte Applicant’s Amended Notice of Motion within fourteen (14) days from the date of service by the ex parte Applicant.

VII. The hearing of the Amended Notice of Motion shall be held on25thJanuary 2021.

VIII. In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear and determine the ex parte Applicant’s Amended Notice of Motion on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.

IX. All the parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies by electronic mail to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.com and asunachristine51@gmail.com.

X. The service of pleadings and documents directed by the Court shall be by way of personal service andelectronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comwith copies toasunachristine51@gmail.com.

XI. The parties shall also be required to file and send to the Deputy Registrar of the Judicial Review Division their respective affidavits of service evidencing personal service, by way of electronic mail tojudicialreview48@gmail.comwith copies to asunachristine51@gmail.com.

XII. The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for hearing on 25thJanuary 2021.

XIII. The Deputy Registrar ofthe Judicial Review Division shall send a copy of this ruling to the ex parte Applicant by electronic mail by close of business on Thursday, 3rd December 2020.

XIV. Parties shall be at liberty to apply.

13. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF DECEMBER 2020

P. NYAMWEYA

JUDGE