[2018] KEHC 7448 (KLR)
The court declined to issue ex-parte stay orders, finding that the respondent’s counsel’s undertaking not to require the ex-parte applicant’s members to attend scheduled interviews until further orders adequately addressed the applicant’s concerns. The court considered that issuing a stay order suo moto would...
Source-derived case information.
- Citation
- [2018] KEHC 7448 (KLR)
- Parties
- Applicant: Republic; Respondent: Ethics and Anti-Corruption Commission; Applicant: County Assembly of Homa Bay County
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 2 of 2018
- Procedural Posture
- Judicial Review / Interlocutory Application for Stay Orders Pending Hearing of Main Motion
- Outcome
- Interim stay orders declined; directions issued for expedited hearing and respondent's undertaking recorded.
- Judges
- DO Ohungo
- Legal Topics
- Judicial Review Procedure, Stay of Proceedings, Public Officer Investigations, County Government Powers
- 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
Ethics and Anti-Corruption Commission
Respondent
County Assembly of Homa Bay County
Applicant
Procedural Posture
Judicial Review / Interlocutory Application for Stay Orders Pending Hearing of Main Motion
Legal Issues
- 1 Whether the court should grant interim stay orders restraining the respondent from requiring members of the ex-parte applicant to attend scheduled interviews pending hearing of the main motion.
- 2 Whether the respondent's undertaking not to require attendance renders the application for stay orders moot at this stage.
Ratio Decidendi
The court declined to issue ex-parte stay orders, finding that the respondent’s counsel’s undertaking not to require the ex-parte applicant’s members to attend scheduled interviews until further orders adequately addressed the applicant’s concerns. The court considered that issuing a stay order suo moto would unnecessarily extend the interim relief until the main motion was heard, which was not justified in the circumstances. The court instead directed expedited filing and service of the substantive motion and responses, and ordered that the issue of stay and the main motion be heard together on a fixed date. The court’s approach balanced the need to prevent prejudice to the applicant...
Court Disposition
Interim stay orders declined; directions issued for expedited hearing and respondent's undertaking recorded.
Orders
- The ex-parte applicant to file and serve the motion within 7 days; respondents to file their response within 7 days of service, addressing the issue of stay orders.
- The ex-parte applicant’s members shall not report to the EACC Offices for the scheduled interviews, following the respondent’s counsel’s undertaking, until further orders on 21/03/18.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
JUDICIAL REVIEW NO.2 OF 2018
IN THE MATTER OF AN APPLICATION BY THE HOMA BAY COUNTY ASSEMBLY FOR ORDERS OF PROHIBITION AND CERTIORARI
AND
IN THE MATTER OF THE COUNTY GOVERNMENTS ACT
IN THE MATTER OF THE COUNTY ASSEMBLIES POWERS AND PRIVILEGES ACT AND IN THE MATTER OF AND/OR THE VIOLATION OF ARTICLES 10, 25, 47, 50, 175, 178, 183, 185 AND 236 OF THE CONSTITUTION, 2010
AND
IN THE MATTER OF AND/OR BREACH OF SECTIONS OF THE COUNTY GOVERNMENTS ACT
AND
IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORMS ACT, CHAPTER 26, LAWS OF KENYA
AND
IN THE MATTER OF THE NATIONAL ASSEMBLY (POWERS AND PRIVILEGES) ACT
AND
IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010
BETWEEN
REPUBLIC..............................................................APPLICANT
AND
THE ETHICS AND
ANTI CORRUPTION COMMISSION.............RESPONDENT
COUNTY ASSEMBLY
OF HOMA BAY COUNTY................EX-PARTE APPLICANT
RULING
1. This matter came up yesterday 05/03/18 under certificate of urgency and the court declined to grant ex-parte stay orders, preferring that both parties present arguments on the issue just before the court makes orders on that particular prayer.
2. I acknowledge that the orders were issued late in the afternoon and the respondent would not have had sufficient time to prepare a response. However fixing the matter for this morning was borne out of the fact that counsel who appeared yesterday was insistent that unless stay was issued, her client would be prejudiced as they were required to report to the EACC Offices starting 8. 00 a.m. for interviews as part of the investigations process as per annexed schedule. That is why the matter was fixed for 8. 00 a.m. so as to avoid a situation where orders are issued after the horse has bolted.
3. Miss Amojong has given an undertaking that between today and the date she files an appropriate response on the issue, her office will not require the ex-parte applicant’s members to report to the EACC Offices for the scheduled interviews – that in effect takes care of the concerns the ex-parte applicant’s members had – so whether it is termed a stay or an undertaking – the difference is the same.
4. I am however reluctant to issue stay orders suo moto because that would remain in force until the main motion is heard – I find it more prudent to direct as follows:-
(i) The ex-parte applicant do file and serve the motion within 7 (seven) days as offered by Mr. Willis Otieno – this varies the earlier order requiring that the motion be filed within 21 days. The respondents do file their response within 7 days of that service (which response should also address the issue regarding stay orders.
(ii) The ex-parte applicant’s members shall not report to the EACC Offices for the scheduled interviews, following an undertaking by the respondent’s counsel, until this court gives further orders on 21/03/18.
(iii) Main motion and issue of stay be canvassed simultaneously on 21/03/18.
H.A. OMONDI
JUDGE
06. 03. 2018