[2021] KEHC 7274 (KLR)
The court held that the applicant's application for stay was premature and incompetent because leave to commence judicial review proceedings had not yet been granted. Without leave, there was no substantive suit before the court upon which a stay order could be anchored. Furthermore, the court noted that the issue...
Source-derived case information.
- Citation
- [2021] KEHC 7274 (KLR)
- Parties
- Applicant: Dr. Nicholas Muyale; Respondent: Kenya Veterinary Board (KVB)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application E047 of 2021
- Procedural Posture
- Judicial Review Application / Ruling on Interlocutory Application for Stay
- Outcome
- application dismissed
- Judges
- P Nyamweya
- Legal Topics
- Judicial Review, Exhaustion of Statutory Remedies, Stay of Decision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Nicholas Muyale
Applicant
Kenya Veterinary Board (KVB)
Respondent
Procedural Posture
Judicial Review Application / Ruling on Interlocutory Application for Stay
Legal Issues
- 1 Whether the applicant is entitled to an order of stay before leave to commence judicial review proceedings is granted.
- 2 Whether the applicant has exhausted the statutory remedies under section 37 of the Veterinary Surgeons and Veterinary Para-Professionals Act before approaching the court.
- 3 Whether the court has jurisdiction to grant stay orders in the absence of a substantive suit.
Ratio Decidendi
The court held that the applicant's application for stay was premature and incompetent because leave to commence judicial review proceedings had not yet been granted. Without leave, there was no substantive suit before the court upon which a stay order could be anchored. Furthermore, the court noted that the issue of exhaustion of statutory remedies under section 37 of the Veterinary Surgeons and Veterinary Para-Professionals Act was still pending determination, and this issue directly affected the court's jurisdiction to entertain the matter. As such, the court found that there was no legal basis or substratum for granting the stay orders sought by the applicant at this stage.
Court Disposition
application dismissed
Orders
- The Applicant’s Notice of Motion dated 15th April 2021 is dismissed with no order as to costs.
- The Applicant shall comply with the directions given herein on 13th April 2021 and this matter shall proceed for hearing on 25th May 2021.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW APPLICATION NO. E047 OF 2021
BETWEEN
DR. NICHOLAS MUYALE (VETERINARY SURGEON,
CHAIRMAN KENYA VETERINARY ASSOCIATION (KVA)
& DE JURE MEMBER OF KVB)......................................APPLICANT
VERSUS
KENYA VETERINARY BOARD (KVB)........................RESPONDENT
RULING
1. The Applicant herein filed a Chamber Summons application dated 2nd April 2021, seeking leave to commence judicial review proceedings against the Respondent in respect of its decision contained in a letter dated 19th March 2021. On 13th April 2021, this Court directed that the said application be canvassed inter partes and the Respondent given an opportunity to respond, particularly as to the issue whether the Applicant has exhausted the prescribed statutory remedy in section 37 of the Veterinary Surgeons and Veterinary Para-Professionals Act.
2. The Applicant has now filed another application by Notice of Motion dated 15th April 2021, seeking an order of stay of the Respondent’s decision as contained in the letter dated 19th March 2021 pending the hearing and determination of the application.
3. The said application has no leg to stand on for two reasons. Firstly, no leave has been granted to the Applicant to commence any proceedings, and he therefore has no suit herein capable of being stayed. Secondly, the issue whether the Applicant is in the proper forum in the first place needs to be determined, and this issue goes to this Court’s jurisdiction to grant any orders in this matter. The long and short of it is that there is no substratum for granting the stay orders sought.
4. In the circumstances, I hereby direct and order as follows:
(i) The Applicant’s Notice of Motion dated 15th April 2021 is dismissed with no order as to costs.
(ii) The Applicant shall comply with the directions given herein on 13th April 2021 and this matter shall proceed for hearing on 25th May 2021.
(iii) The Deputy Registrar ofthe Judicial Review Division shall send a copy of this ruling to the Applicant by electronic mail by close of business on Friday, 16th April 2021.
(iv) Parties shall be at liberty to apply.
5. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 15TH DAY OF APRIL 2021
P. NYAMWEYA
JUDGE