[2014] KEHC 3366 (KLR)
The court found that the ex parte applicants had established a prima facie case for the grant of leave to apply for judicial review orders of mandamus and prohibition. The court was satisfied that the applicants had demonstrated sufficient grounds to warrant further inquiry into the lawfulness of the respondent's...
Source-derived case information.
- Citation
- [2014] KEHC 3366 (KLR)
- Parties
- Applicant: Republic; Respondent: Bomet County Government; Applicant: Leonard Kosgei, Hillary Ngetich, Hudson Njunge, Duncan Kambi, Gladys Laboso (Exparte Applicants)
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 5 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review Orders
- Outcome
- Leave granted to apply for orders of mandamus and prohibition; leave to operate as a stay of criminal proceedings pending determination of the substantive application.
- Legal Topics
- Judicial Review, Mandamus, Prohibition Orders, Licensing Disputes, Stay of Proceedings
- 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
Republic
Applicant
Bomet County Government
Respondent
Leonard Kosgei, Hillary Ngetich, Hudson Njunge, Duncan Kambi, Gladys Laboso (Exparte Applicants)
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review Orders
Legal Issues
- 1 Whether the ex parte applicants have established a prima facie case to warrant leave to apply for orders of mandamus and prohibition.
- 2 Whether leave should operate as a stay of criminal proceedings against the applicants pending determination of the substantive application.
Ratio Decidendi
The court found that the ex parte applicants had established a prima facie case for the grant of leave to apply for judicial review orders of mandamus and prohibition. The court was satisfied that the applicants had demonstrated sufficient grounds to warrant further inquiry into the lawfulness of the respondent's actions regarding the issuance of liquor licenses and the institution of criminal proceedings. To preserve the status quo and prevent prejudice to the applicants, the court exercised its discretion to grant leave and directed that such leave operate as a stay of the criminal proceedings in the specified cases pending the hearing and determination of the substantive judicial...
Court Disposition
Leave granted to apply for orders of mandamus and prohibition; leave to operate as a stay of criminal proceedings pending determination of the substantive application.
Orders
- Leave of ten days granted to the applicants to apply for orders of mandamus and prohibition as sought in prayers 2 and 3 of the summons.
- Leave granted shall operate as a stay of the criminal proceedings in Principal Magistrate's Court at Bomet Criminal Case Nos. 529/2014, 736/2014, and 531/2014 pending the filing, hearing, and determination of the substantive judicial review application.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
Misc.Civil Application No.5 Of 2014
In The Matter Of An Application For Leave To Apply For An Order Of Mandamus And Prohibition
And
In The Matter Of The Bomet County Government
And
In The Matter Of The Bomet County Alcoholic Beverage Control And Management Act, 2014
REPUBLIC......................................................APPLICANT
VERSUS
BOMET COUNTY GOVERNMENT...............RESPONDENT
RULING
The subject matter of this ruling is the Summons dated 8th July 2014 taken out by Leonard Kosgei, Hillary Ngetich, Hudson Njunge, Duncan Kambi and Gladys Laboso hereinafter referred to as the Exparte Applicants. In the aforesaid summons, the Applicants are seeking for leave to apply for the following orders:
THAT the Application be certified as urgent and be heard ex parte in the first instance.
THAT the Applicants be granted leave to institute Judicial proceedings in the nature of mandamu directing the Respondent to issue the Applicants with Liquor Licenses and operating permits for their wines and spirits shops situated within Bomet County Township.
THAT the Applicants be granted leave to institute Judicial Proceedings in the nature of prohibition, prohibiting the Respondent or its agents, from unlawfully and/or in any other manner whatsoever interfering or disrupting the business operations of the Applicants, their employees, servants and/or agents in the course of operating, selling, disposing and/or dealing with licensed alcoholic drinks and that the Respondent be stopped from instituting, commencing and/or proceeding with criminal proceedings agaisnt the Applicants for operating their businesses without licenses pending the hearing and determination of this application.
THAT the leave granted do operate as a stay of the proceedings.
THAT the leave granted do operate as a stay of the criminal proceedings in the Principal Magistrate's Court at Bomet Criminal Case No. 529/2014, 736/2014 and 531/2014 pending the filing, hearing and determination of the Judicial Review Application.
THAT the costs of this application be costs in the cause.
The summons contains the grounds it is based. It is also accompanied by a statement of facts and is verified by the affidavit of Leonard Kosgei.
I have considered the oral submissions made by Mr. Gwaro learned advocate for the Exparte/Applicants and the material placed before me. I am convinced the Applicants have shown they have a prima facie case. I grant them leave of ten days to apply for the orders sought in prayers 2 and 3 of the summons.
I have also been asked in prayer 5 to direct that the order of leave do operate as a stay of the criminal cases. I think it is necessary to grant the orders to maintain the status quo pending the hearing of this dispute. Consequently, I grant orders sought in prayer 5 to last until the substantive application is filed, heard and determined.
Dated, Signed and delivered in open court this 31st day of July, 2014.
…................
J.K.SERGON
JUDGE
In the presence of:
Mbeche holding brief for Gwaro for Exparte