[2012] KEHC 1086 (KLR)
The court held that the leave granted to the Applicant/Respondent to file judicial review proceedings was conditional upon filing the substantive motion within 21 days. Since the Applicant/Respondent failed to file the substantive motion within the stipulated period, the leave lapsed, and consequently, the stay...
Source-derived case information.
- Citation
- [2012] KEHC 1086 (KLR)
- Parties
- Applicant: Republic; Respondent: Central Provincial and Appeal Tribunal; Respondent: Kerugoya Principal Magistrate Court; Respondent: Millicent Kagure; Respondent: Beatrice Muthoni Muchira; Respondent: Eunice Wanja Muriithi; Respondent: Mariam Kababu Njue; Interested Party: Leonard Mwai Gachoki
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 51 of 2009
- Procedural Posture
- Judicial Review / Ruling on Application to Vacate Stay
- Outcome
- application allowed
- Legal Topics
- Judicial Review Procedure, Leave to Apply, Stay of Proceedings, Failure to File Substantive Motion
- 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
Central Provincial and Appeal Tribunal
Respondent
Kerugoya Principal Magistrate Court
Respondent
Millicent Kagure
Respondent
Beatrice Muthoni Muchira
Respondent
Eunice Wanja Muriithi
Respondent
Mariam Kababu Njue
Respondent
Leonard Mwai Gachoki
Interested Party
Procedural Posture
Judicial Review / Ruling on Application to Vacate Stay
Legal Issues
- 1 Whether the leave granted to file judicial review proceedings remained valid after the applicant failed to file the substantive motion within 21 days.
- 2 Whether the stay order could continue to operate in the absence of a substantive motion.
Ratio Decidendi
The court held that the leave granted to the Applicant/Respondent to file judicial review proceedings was conditional upon filing the substantive motion within 21 days. Since the Applicant/Respondent failed to file the substantive motion within the stipulated period, the leave lapsed, and consequently, the stay order also lapsed. There was therefore no operative leave or stay to be vacated. The application to vacate the stay was allowed with costs to the applicant.
Court Disposition
application allowed
Orders
- The application dated 21/7/2011 is allowed with costs.
- Any stay order previously in force is deemed to have lapsed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Embu
Judicial Review 51 of 2009 [if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]
REPUBLIC ...........…...............................................................……..APPLICANT
VERSUS
CENTRAL PROVINCIAL AND APPEAL TRIBUNAL.........1ST RESPONDENT
KERUGOYA PRINCIPAL MAGISTRATE COURT.............2ND RESPONDENT
MILLICENT KAGURE..........................................................3RD RESPONDENT
BEATRICE MUTHONI MUCHIRA.......................................4TH RESPONDENT
EUNICE WANJA MURIITHI..................................5TH RESPONDENT
MARIAM KABABU NJUE...................................................6TH RESPONDENT
EX-PARTE
LEONARD MWAI GACHOKI.........................................INTERESTED PARTY
R U L I N G
This is the Notice of Motion dated 21/7/2011 seeking orders that the order allowing the leave to operate as stay should be vacated. The application is supported by the affidavit of the 3; Respondent/Applicant. Its opposed by the Applicant/Respondent, who has never filed an affidavit in spite of having been served.
The record that this Court on 5/11/2009 granted the Applicant/Respondent leave to file Judicial Review for order of prohibition and mandamus. The said leave was to operate as stay until the hearing and determination of the substantive application which was to be filed within 21 days.
Since 5/11/2009 the Applicant has never file the substantive motion. My finding is that the leave could only be operative if the substantive motion was filed within 21 days. Since it was not filed, then there is NO LEAVE. And if there is no leave then there is no stay. I don't even see what is to be vacated. The stay died with the leave after the expiry of 21 days with no substantive motion having been made.
I therefore allow the application dated 21/7/2011 with costs.
DELIVERED, DATED AND SIGNED AT EMBU THIS 6TH DAY OF NOVEMBER 2012.
H.I. ONG’UDI
J U D G E
In the presence of:-
Mr. Kagio for 3rd – 6th Respondents
Njue CC