[2011] KEHC 77 (KLR)
The court held that allowing the leave to operate as a stay would effectively determine the substantive issues of the judicial review application before the matter is properly filed, served, and heard. The court declined to grant the stay, emphasizing that such interim relief would preempt the hearing and...
Source-derived case information.
- Citation
- [2011] KEHC 77 (KLR)
- Parties
- Applicant: Benard Gade Mimoh; Respondent: District Commissioner Kirinyaga East; Respondent: Commandant of the Administration of Police
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 74 of 2011
- Procedural Posture
- Judicial Review / Ruling on Application for Leave to Operate as Stay
- Outcome
- Application for leave to operate as stay declined.
- Legal Topics
- Judicial Review, Certiorari, Mandamus, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Gade Mimoh
Applicant
District Commissioner Kirinyaga East
Respondent
Commandant of the Administration of Police
Respondent
Procedural Posture
Judicial Review / Ruling on Application for Leave to Operate as Stay
Legal Issues
- 1 Whether leave granted to apply for judicial review should operate as a stay of the respondents' decisions.
- 2 Whether granting such leave would amount to determining the substantive review before it is heard.
Ratio Decidendi
The court held that allowing the leave to operate as a stay would effectively determine the substantive issues of the judicial review application before the matter is properly filed, served, and heard. The court declined to grant the stay, emphasizing that such interim relief would preempt the hearing and determination of the main judicial review application, which seeks reinstatement and payment of accrued salary.
Court Disposition
Application for leave to operate as stay declined.
Orders
- Prayer 3 of the Chamber Summons dated 19/10/2011 is declined.
- Costs in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Judicial Review 74 of 2011
IN THE MATTER OF THE APPLICATION BY BENARD GADE MIMOH FOR LEAVE TO APPLY FOR ORDER OF CERTIORARI AND MANDAMUS
AND
IN THE MATTER OF THE ADMINSTRATIVE POLICE ACT CHAPTER 85
AND
THE DISTRICT COMMISSIONER KIRINYAGA EAST AND THE COMMANDANT OF
THE ADMINSTRATION OF POLICE
BENARD GADE MIMOH……………………………………………………………..APPLICANT
R U L I N G
This is prayer No. 3 of the Chamber Summons dated 19th October 2011. The Applicant was on 19th October 2011 granted leave to file Judicial Review challenging the decisions of the Respondents. He now wants the leave to operate as stay. The Respondents were served with notice for inter partes hearing on the issue of stay but they did not turn up. In his submissions counsel for the Applicant asked the court to have the Applicant reinstated and paid his salary.
I have looked at the Chamber Summons at prayer four (4). The order of Mandamus to be prayed for in the Judicial Review is for the reinstatement of the Applicant and payment of the accrued salary from the date of dismissal.
Allowing leave to operate will indeed be dealing with and determining the Review before I is filed, served and heard.
For those reasons I decline to grant prayer 3 of the Chamber Summons dated 19/10/2011. Costs in the cause.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT EMBU THIS 8TH DAY OF NOVEMBER 2011.
H. I. ONG’UDI
JUDGE