[2024] KEHC 6837 (KLR)
The court declined to grant interim orders for reopening the applicant's business premises because such an order would effectively determine the substantive dispute before the main motion is heard. The court also considered the constitutional imperative to protect children and learners, given the proximity of the...
Source-derived case information.
- Citation
- [2024] KEHC 6837 (KLR)
- Parties
- Applicant: Republic; Respondent: County Government of Taita Taveta; Applicant: Juma Barsley Mwashimba t/a JV Hotel Mwatate
- Court
- High Court
- Court Station
- High Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application E002 of 2024
- Procedural Posture
- Judicial Review Miscellaneous Application / Ruling on Interim Stay Application
- Outcome
- Interim orders declined; main motion to be fast-tracked.
- Judges
- GMA Dulu
- Legal Topics
- Judicial Review, Interim Orders, Licensing Disputes, Right to Fair Administrative Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
County Government of Taita Taveta
Respondent
Juma Barsley Mwashimba t/a JV Hotel Mwatate
Applicant
Procedural Posture
Judicial Review Miscellaneous Application / Ruling on Interim Stay Application
Legal Issues
- 1 Whether the applicant is entitled to interim orders for reopening business premises pending determination of the main motion.
- 2 Whether granting interim orders would pre-empt the substantive suit.
- 3 Whether the proximity of the applicant's business to an educational institution justifies denial of a trading licence.
Ratio Decidendi
The court declined to grant interim orders for reopening the applicant's business premises because such an order would effectively determine the substantive dispute before the main motion is heard. The court also considered the constitutional imperative to protect children and learners, given the proximity of the business to an educational institution. The balance of convenience and public interest weighed against granting the interim relief sought. The court instead directed that the main motion be fast-tracked for hearing and determination.
Court Disposition
Interim orders declined; main motion to be fast-tracked.
Orders
- The application for interim orders is declined.
- The Notice of Motion is to be fast-tracked for hearing and determination.
Full Case Text
Judgment text and source record
26 paragraphs
Republic v County Government of Taita Taveta; Juma Barsley Mwashimba t/a JV Hotel Mwatate (Exparte Applicant) (Judicial Review Miscellaneous Application E002 of 2024) [2024] KEHC 6837 (KLR) (18 April 2024) (Ruling)
Neutral citation: [2024] KEHC 6837 (KLR)
Republic of Kenya
In the High Court at Voi
Judicial Review Miscellaneous Application E002 of 2024
GMA Dulu, J
April 18, 2024
N THE MATTER OF ORDER 53 RULE 1, 2, 3 AND 4 OF CIVIL PROCEDURE RULES AND ALL ENABLING PROVISIONS OF LAWS OF KENYA AND IN THE MATTER OF THE TAITA TAVETA COUNTY ALCOHOLIC DRINKS CONTROL AND LICENSING ACT, 2016 AND IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT, CAP 26 LAWS OF KENYA AND IN THE MATTER OF ARTICLES 47 AND 50 OF THE CONSTITUTION OF KENYA
Between
Republic
Applicant
and
County Government of Taita Taveta
Respondent
and
Juma Barsley Mwashimba t/a JV Hotel Mwatate
Exparte Applicant
Ruling
1. In this Judicial Review matter the main Notice of Motion dated 12th April 2024 was filed after leave to commence Judicial Review proceedings was granted by the court on 20th March 2024.
2. On the mention date which was on 15th April 2024, counsel for the applicant Mr. Mutinda asked that this court grants interim stay of the action of the respondent to deny the applicant a trading licence and closing the applicant’s business premises known as JV Hotel at Mwatate.
3. I have perused and considered the application and all the documents filed.
4. I note that the information pleaded by the applicant is that they paid Kshs. 50,000/= for renewal of annual licence, but on 12th March 2024 the respondent’s inspection agents communicated that the business be closed for being in close proximity with an educational institution, which is the basis of these proceedings.
5. On my part, considering that the interim orders sought are discretionary orders, and since the premises have already been closed, I find that granting the orders sought of re-opening the business, will have the effect of determining the substantive suit or proceedings herein before hearing date.
6. In addition to the above, it is apparent from the pleadings that the issue in contest is based on alleged protection of learners in educational institutions, some of whom might be children and, in light of the provisions of Article 53(2) of the Constitution, I take the view that it will not be appropriate for this court to grant interim orders to reopen the subject premises for business now before full hearing of the main motion.
7. I thus decline to grant interim orders sought, and instead order that the Notice of Motion be fast tracked in its hearing and determination.
DATED, SIGNED AND DELIVERED THIS 18TH DAY OF APRIL 2024 IN OPEN COURT AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantMr. Mutinda for ex-parte applicantNo appearance for respondents