[2005] KEHC 969 (KLR)
The court found that the ex parte applicant had demonstrated an arguable case for judicial review based on the statement of facts and verifying affidavit. The court further held that denying leave would unjustifiably restrict access to justice. Additionally, the court was satisfied that unless a stay was granted,...
Source-derived case information.
- Citation
- [2005] KEHC 969 (KLR)
- Parties
- Applicant: Republic; Respondent: The Makueni District Land Dispute Tribunal; Respondent: The Embu Provincial Land Appeals Committee; Respondent: The Kilungu Resident Magistrate; Interested Party: Onesmus Munguti Kioko; Ex Parte: Michael Malua Kavali; Ex Parte: William Kakui Mwania
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 285 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Leave and Stay Application
- Outcome
- Leave granted; leave to operate as stay; directions for filing and service; costs in the cause.
- Legal Topics
- Judicial Review, Certiorari, Prohibition, Leave to Apply, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The Makueni District Land Dispute Tribunal
Respondent
The Embu Provincial Land Appeals Committee
Respondent
The Kilungu Resident Magistrate
Respondent
Onesmus Munguti Kioko
Interested Party
Michael Malua Kavali
Ex Parte
William Kakui Mwania
Ex Parte
Procedural Posture
Miscellaneous Application / Ruling on Leave and Stay Application
Legal Issues
- 1 Whether the applicant has established an arguable case for leave to apply for orders of certiorari and prohibition.
- 2 Whether leave should operate as a stay of the proceedings or decisions challenged.
Ratio Decidendi
The court found that the ex parte applicant had demonstrated an arguable case for judicial review based on the statement of facts and verifying affidavit. The court further held that denying leave would unjustifiably restrict access to justice. Additionally, the court was satisfied that unless a stay was granted, the intended application would be rendered nugatory, justifying the grant of a stay pending the hearing of the substantive application. Accordingly, leave to file the judicial review application was granted, and such leave was ordered to operate as a stay of the challenged proceedings or decisions until further directions of the court.
Court Disposition
Leave granted; leave to operate as stay; directions for filing and service; costs in the cause.
Orders
- Leave to file a Notice of Motion for the specified superior orders is hereby granted.
- The intended application shall be filed within 21 days.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS Misc Civ Appli 285 of 2005
REPUBLIC ………………………………………………………………. APPLICANT VERSUS THE MAKUENI DISTRICT LAND DISPUTE TRIBUNAL THE EMBU PROVINCIAL LAND APPEALS COMMITTEE THE KILUNGU RESIDENT MAGISTRATE …………..………… RESPONDENTS AND ONESMUS MUNGUTI KIOKO …………………………/… INTERESTED PARTY MICHAEL MALUA KAVALI WILLIAM KAKUI MWANIA …………………………….……………… EX PARTE
R U L I N G
This is an application for leave to file an application seeking the superior orders of certiorari and prohibition. It is properly accompanied by a Statement of Facts and a Verifying Affidavit as required. The notice required to be served upon the Registrar was duly served on 21/10/2005. Perusal of the statement of facts demonstrates that the Ex parte applicant has an arguable case. Under these circumstances, the court has no business denying a citizen access to the court of justice. The leave sought therefore will be granted.
The Ex Applicant also seeks that the leave be ordered to operate as a stay. I have considered the arguments advanced by the applicant for that purpose. I am satisfied that if a stay is not granted the application will come to naught. The court will therefore also grant this prayer. The appropriate orders will therefore be as follows:
ORDERS:
1. Leave to file a Notice of Motion for the specified superior orders is hereby granted.
2. The intended application shall be filed within 21 days.
3. Service of the intended application shall be within 14 days after the filing.
4. The respondents or interested parties so served shall file their responses within 21 days after such service.
5. This leave granted shall operate as stay until this matter is mentioned before this court.
6. Mention of the intended application on 26/1/2006 for further directions.
7. Costs in the main cause.
Dated and delivered at Machakos this 24th day of October 2005
D.A. ONYANCHA
JUDGE