[2008] KEHC 337 (KLR)
The court found that the application lacked the necessary specificity regarding the legal provisions relied upon for the orders sought, particularly for the declaration of criminality and the basis under the Physical Planning Act. The absence of clear statutory references rendered the application incompetent. The...
Source-derived case information.
- Citation
- [2008] KEHC 337 (KLR)
- Parties
- Applicant: Republic; Applicant: Jaribu Motors Limited; Respondent: Secretary, Provincial (Nairobi) Liaison Committee; Respondent: Provincial Liaison Committee
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 30 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Orders of Mandamus and Declaration
- Outcome
- application struck out as incompetent
- Judges
- BP Kubo
- Legal Topics
- Judicial Review, Mandamus Orders, Procedural Compliance, Physical Planning Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Jaribu Motors Limited
Applicant
Secretary, Provincial (Nairobi) Liaison Committee
Respondent
Provincial Liaison Committee
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Orders of Mandamus and Declaration
Legal Issues
- 1 Whether the applicant is entitled to orders of mandamus compelling the respondents to set down and hear its appeal.
- 2 Whether the applicant is entitled to a declaration that the 1st respondent's conduct was criminal.
- 3 Whether the application meets the specificity and procedural requirements under the Civil Procedure Rules and the Physical Planning Act.
Ratio Decidendi
The court found that the application lacked the necessary specificity regarding the legal provisions relied upon for the orders sought, particularly for the declaration of criminality and the basis under the Physical Planning Act. The absence of clear statutory references rendered the application incompetent. The court emphasized that it is not appropriate for a civil court to make declarations of criminality without explicit legal authority. Consequently, the application was struck out for being procedurally and substantively deficient.
Court Disposition
application struck out as incompetent
Orders
- The application is struck out for lack of specificity and competence.
- Costs in the cause.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Civil Appli 30 of 2008
REPUBLIC.........................................................................................APPLICANT
VERSUS
JARIBU MOTORS LIMITED....................................................... APPLICANT
EX-PARTE
SECRETARY, PROVINCIAL (NAIROBI)
LIAISON COMMITTEE.......................................................1ST RESPONDENT
PROVINCIAL LIAISON COMMITTEE.......................... 2ND RESPONDENT
RULING
By notice of motion dated 13. 06. 08 stated to be brought under Order LIII rule 3(1) of the Civil Procedure Rules, the applicant prayed for the following orders:-
1. By way of mandamus to compel the 1st respondent to set down the applicant’s appeal as an agenda to be heard and determined by the 2nd respondent and/or
2. By way of mandamus to compel the 2nd respondent to meet, hear and determine the applicant’s appeal and
3. By way of declaration, the honourable court order that the 1st respondent’s conduct in issuing non-official receipts dated 06. 03. 08, for money paid with respect to lodging an appeal to be heard by the 2nd respondent is criminal.
4. That costs of this application be in the cause.
The grounds on which the application is based are:-
i. That the applicant is aggrieved by the decision of the Director of City Planning.
ii. That the applicant is intent on appealing against the said decision of the Director of City Planning.
iii. That such appeal lies with the Provincial Liaison Committee, the 2nd respondent herein, and which committee has not given to the applicant any notice of the hearing of its appeal nor has any notice of a decision made by the respondent with regard to the appeal been given for the last 94 days contrary to the provisions of the Physical Planning Act, Cap.286.
iv. That the 1st respondent is by law charged with the responsibility of setting the agenda and hence convening meetings to be held by the 2nd respondent, which duty he has failed to carry out.
v. That the applicant stands to suffer irreparable loss if it is not accorded its right to be heard before the 2nd respondent as soon as possible.
vi. That it is in the interest of justice that the orders prayed for herein be granted.
The application is supported by the affidavit of Iqbal Manji, a director of the applicant sworn on 13. 06. 08.
At the hearing of the application on 03. 11. 08, the applicant was represented by learned counsel, Miss A. Amimo.
Applicant’s counsel said that the application was served on 06. 08. 08 but the respondents never appeared at the hearing. There is indeed an affidavit of service by Francis Makau, process server sworn on 02. 09. 78 confirming service as stated above, but the respondents never appeared.
I have given due consideration to the application, the grounds on which it is based and the affidavit of the applicant sworn on 13. 06. 08 in support of the application.
Other than the specific reference to Order LIII rule 3(1) of the Civil Procedure Rules providing for an application such as the one now before this court to be filed within 21 days of the grant of leave to do so, and other than a general reference to the Physical Planning Act, Cap.286, the application lacks specificity as to the actual legal provisions relied on for various of the orders sought. Examples of the aforesaid lack of specificity are:-
a) Prayer 3 seeking a declaration that the 1st respondent’s conduct alluded to in that prayer is criminal. No legal provision for the criminality alluded to has been specified. What would be the basis for the court making such a declaration? And supposing the court makes such a declaration, what will be next? Is it appropriate for the court in exercising its civil jurisdiction also to veer into granting declarations relating to criminality?
b) What provisions of the Physical Planning Act are relied on as the basis of grounds (iii) and (iv) of the application? These matters have been left to speculation.
In my respectful view, the application cannot properly be granted in its present form. It is incompetent and I so declare it and here by strike it out. Costs in the cause.
Orders accordingly.
Delivered at Nairobi this 1st day of December, 2008.
B.P. KUBO
JUDGE