[2012] KEHC 4672 (KLR)
The court held that the applicable principles for granting a stay of enforcement in this public law matter are those governing judicial review, not the general principles for interlocutory injunctions. The applicant failed to demonstrate that enforcement of the regulations would cause irreparable harm, as any levies...
Source-derived case information.
- Citation
- [2012] KEHC 4672 (KLR)
- Parties
- Applicant: Githunguri Dairy Farmers Cooperative Society Limited; Respondent: The County Council of Kiambu; Respondent: The Kenya Dairy Board
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 353 & 362 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Stay of Enforcement of Regulations
- Outcome
- application dismissed
- Judges
- CC Kipkorir
- Legal Topics
- Judicial Review, Interim Injunctions, Stay of Enforcement, Public Law Remedies
- 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
Githunguri Dairy Farmers Cooperative Society Limited
Applicant
The County Council of Kiambu
Respondent
The Kenya Dairy Board
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Stay of Enforcement of Regulations
Legal Issues
- 1 Whether the court should stay the enforcement of the Dairy Industry (Imposition of Cess and Levy) (Amendment) Regulations 2010 pending the hearing and determination of the main suit.
Ratio Decidendi
The court held that the applicable principles for granting a stay of enforcement in this public law matter are those governing judicial review, not the general principles for interlocutory injunctions. The applicant failed to demonstrate that enforcement of the regulations would cause irreparable harm, as any levies collected could be refunded if the regulations were ultimately invalidated. The court found that the challenge to the validity of the regulations was not so firmly based as to justify the exceptional course of suspending their enforcement. Accordingly, the application for stay was dismissed, and the parties were advised to proceed to a full hearing of the main suit without delay.
Court Disposition
application dismissed
Orders
- The application for stay of enforcement of the Dairy Industry (Imposition of Cess and Levy) (Amendment) Regulations 2010 is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION NO. 353-362 OF 2010
GITHUNGURI DAIRY FARMERS CO-OPERATIVESOCIETY ........................PLAINTIFF
VERSUS
THE COUNTY COUNCIL OF KIAMBU.............................................................1ST DEFENDANT
THE KENYA DAIRY BOARD ............................................................................2ND DEFENDANT
RULING
Githunguri Dairy Farmers Cooperative Society Limited (the Plaintiff/Applicant) through a chamber summons dated 11th November, 2010 brought under Section 3 of the Judicature Act, Section 3 of the Civil Procedure Act, Order XXXIX Rules 1-3 of the Civil Procedure Rules prays for an order stopping the enforcement of the Dairy Industry (Imposition of Cess and Levy) (Amendment) Regulations 2010 (hereinafter simply referred to as the regulations) by the County Council of Kiambu (1st Defendant/Respondent) and Kenya Dairy Board (2nd Defendant/Respondent) pending the hearing and determination of the suit. The application is supported by grounds on its face, a supporting affidavit sworn by Charles Ndichu Mukora on 11th November, 2010 and a supplementary affidavit sworn by John Kilonzo on 28th February, 2011.
The application is opposed through a supplementary affidavit sworn on 31st January, 2011 by Mr. Peter Ndendwa Mutua the Administrative Manager of the 2nd Respondent.
I have read the affidavits and the submissions filed by the Applicant and the respondents in respect to the said application. In my view the submissions appear to have been made with the main suit in mind.
There is only one issue to be addressed by this court namely whether the court should stay the enforcement of the regulations pending the hearing and determination of the main suit.
Mr. Gibson Kamau Kuria for the Plaintiff/Applicant submitted that the applicable principles for granting the order sought in this case are those for granting an injunction as enunciated in the celebrated case of GIELLA V CASSMAN BROWN CO. LTD (1973) EA 358. Those principles are so well known and I need not restate them here.
With respect to the learned counsel for the Plaintiff/Applicant, I must state that the declaratory and injunctive orders sought in the plaint dated 11th November, 2010 are orders available in the public law arena in England. In Kenya these remedies are available both in public law and private law. The matter before me is however a public law matter and the principles for granting an order of stay in judicial review proceedings are the ones applicable in this matter.
In judicial review, the threshold for obtaining leave to commence proceedings is a low one and obtaining leave is not in itself evidence of a strong case for staying proceedings. For leave to commence judicial review proceedings to be granted, one only needs to show that he has an arguable case. The threshold for granting a stay of proceedings is however a high one. Unless a law being challenged will cause irreparable harm to those who are supposed to comply with it, the courts will be reluctant to suspend the operation of such a law. In saying this, I am persuaded by the words of Lord Goff who explained in R V SECRETARY OF STATE FOR TRANSPORT EX P. FACTORTAME (NO.2) [1991] A.C. 603 HL that:-
“the court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless, it is satisfied, having regard to all the circumstances , that the challenge to the validity of the law is, prima facie, so firmly based to justify an exceptional course being taken.”
In the case before me, it is clear that even if the levies imposed by the regulations are collected, the same can always be refunded to the farmers. Enforcement of the regulations will not do irreparable harm to the dairy farmers. It is also noted that this matter can be heard and dispensed with without unnecessary delay.
I need not say more except to state that this application fails. This is a matter in which I expect the parties to proceed by way of affidavits and submissions. A perusal of the court file shows that the matter is ready for hearing. The parties are advised to take the nearest date available so that they can highlight their submissions and have the matter dealt with once and for all. There is no order as to costs.
Dated and signed at Nairobi this 2nd day of May , 2012
W. K. KORIR
JUDGE