[2019] KEHC 6862 (KLR)
The court found that the ex-parte applicants, after their application for leave was dismissed in Malindi HC JR No. 2 of 2017, improperly filed a fresh application for leave and stay in Malindi HC JR No. 6 of 2017 instead of seeking review or appealing the dismissal. This conduct constituted an abuse of the court...
Source-derived case information.
- Citation
- [2019] KEHC 6862 (KLR)
- Parties
- Applicant: Republic; Respondent: Nuru Omar Mahendan; Respondent: Mariam Omar Mahendan; Respondent: Anzun Omar Mahendan; Respondent: Malkia Omar Mahendan; Respondent: Malindi Kadhi; Applicant: Ahmed Mohamed Honey alias Ahmed Mohamed Thani; Applicant: Farida Omar Mahendan; Applicant: Ferruz Omar Maghram
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 6 of 2017
- Procedural Posture
- Judicial Review / Ruling on Application to Set Aside Leave and Stay Orders
- Outcome
- Application allowed. Leave and stay set aside. Notice of motion dismissed. Costs to the 1st Interested Party.
- Legal Topics
- Abuse of Process, Leave to Apply for Judicial Review, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Nuru Omar Mahendan
Respondent
Mariam Omar Mahendan
Respondent
Anzun Omar Mahendan
Respondent
Malkia Omar Mahendan
Respondent
Malindi Kadhi
Respondent
Ahmed Mohamed Honey alias Ahmed Mohamed Thani
Applicant
Farida Omar Mahendan
Applicant
Ferruz Omar Maghram
Applicant
Procedural Posture
Judicial Review / Ruling on Application to Set Aside Leave and Stay Orders
Legal Issues
- 1 Whether the ex-parte applicants abused the court process by filing a fresh application for leave after dismissal of a similar application.
- 2 Whether the leave granted on 11th May, 2017 and the accompanying stay should be set aside.
- 3 Whether the ex-parte applicants' notice of motion filed pursuant to the impugned leave should be dismissed.
Ratio Decidendi
The court found that the ex-parte applicants, after their application for leave was dismissed in Malindi HC JR No. 2 of 2017, improperly filed a fresh application for leave and stay in Malindi HC JR No. 6 of 2017 instead of seeking review or appealing the dismissal. This conduct constituted an abuse of the court process. The only lawful avenues available to the ex-parte applicants were to seek a review of the dismissal order or to appeal against it. By filing a new application on the same cause of action and between the same parties, the ex-parte applicants circumvented the judicial process and obtained orders to which they were not entitled. Consequently, the leave granted on 11th May,...
Court Disposition
Application allowed. Leave and stay set aside. Notice of motion dismissed. Costs to the 1st Interested Party.
Orders
- The leave granted to the ex-parte applicants on 11th May, 2017 to commence judicial review proceedings is set aside.
- The stay granted with the said leave is set aside.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
JUDICIAL REVIEW NO. 6 OF 2017
REPUBLIC....................................................................................................APPLICANT
AND
NURU OMAR MAHENDAN
MARIAM OMAR MAHENDAN
ANZUN OMAR MAHENDAN
MALKIA OMAR MAHENDAN...........EX PARTE APPLICANTS/RESPONDENTS
VERSUS
MALINDI KADHI...................................................................................RESPONDENT
AND
AHMED MOHAMED HONEY alias
AHMED MOHAMED THANI...................1ST INTERESTED PARTY/APPLICANT
FARIDA OMAR MAHENDAN.................2ND INTERESTED PARTY/APPLICANT
FERRUZ OMAR MAGHRAM.................3RD INTERESTED PARTY/APPLICANT
RULING
1. Through the Application dated 17th July, 2018 the 1st Interested Party, Ahmed Mohamed Honey alias Ahmed Mohamed Thani, asks this Court to set aside the leave granted on 11th May, 2017 to the ex-parte applicants Nuru Omar Mohendan, Mariam Omar Mahendan, Anzun Omar Mahendan and Malkia Omar Mahendan to commence judicial review proceedings in respect of a decision made by the Respondent, the Kadhi’s Court at Malindi. The application also seeks to set aside the stay granted with the said leave and the dismissal of the ex-parte applicants’ Notice of Motion filed on 30th May, 2017 in pursuance of the said leave. Farida Omar Mahendan and Ferruz Omar Mghram are the respective 2nd and 3rd interested parties.
2. The ex-parte applicants opposed the application through a Replying Affidavit sworn on 1st August, 2018 by the 1st ex-parte Applicant Nuru Omar Mahamed.
3. There are two files touching on this matter. One of the files is the one in which this ruling is being delivered being Malindi H.C. JR No. 6 of 2017. There is also Malindi Judicial Review Case No. 2 of 2017. The parties are the same in both matters. The cause of action is also the same in both matters.
4. The instant application is targeted at the Orders issued on 11th May, 2017 by Olola, J, in Malindi H. C. JR case No. 6 of 2017. Those orders allowed Prayers 2 and 3 of the application. The prayers granted leave to the ex-parte applicants to commence judicial review proceedings and the said leave was ordered to operate as stay.
5. In determining this application, I need not advert to the pleadings of the parties for the court files speak for themselves. In Malindi JR No. 2 of 2017, the ex parte applicants’ application dated 10th February, 2017 was directed to be served for inter-partes hearing. On 16th February, 2017 a clerk from the office of Otara Advocates who are on record for the ex-parte applicants listed the matter for hearing on 29th March, 2017.
6. When the application came up for hearing inter-partes on 29th March, 2017 Counsel for the ex-parte applicants did not turn up in court. The interested parties were represented by Mr Mwadzogo. At 12. 30p.m. the Court dismissed the application observing that there was JR No. 3 of 2017 involving the same parties pending before the court.
7. Following the dismissal, the ex-parte applicants filed an application dated 3rd April, 2017 seeking to reinstate the application for leave dated 10th February, 2017. The said application was withdrawn through a notice of withdrawal dated 11th May, 2017. On the same date a fresh application for leave and stay was filed vide Malindi H.C. JR No. 6 of 2017 and the orders which the instant application seeks to set aside issued. On 30th May, 2017 the ex-arte applicants filed their substantive notice of motion pursuant to the leave granted to them on 11th May, 2017
8. A perusal of the files clearly disclose an abuse of the court process by the ex-parte applicants. Once their application for leave dated 10th February, 2017 in Malindi HC JR No. 2 of 2017 was dismissed by Chitembwe, J, the only way they could go was to seek a review of the order by asking for reinstatement of the application. The other route available to the ex-parte applicants was to appeal the decision dismissing their application. Their first application having already been dismissed, it was erroneous for the ex-parte applicants to introduce another application for leave and stay.
9. For the reasons stated above, I find the 1st Interested Party’s application dated 17th July, 2018 merited. Consequently, the leave granted to the ex-parte applicants on 11th May, 2017 to commence judicial review proceedings and the stay accompanying the said leave are set aside.
10. The ex-parte applicants’ notice of motion filed on the strength of the said leave is dismissed. For avoidance of doubt the application is allowed in its entirely with costs to the Applicant/1st Interested Party.
Dated and Signed at Nairobi this 4th day of April, 2019
W. KORIR,
JUDGE OF THE HIGH COURT
Dated, signed and delivered at Malindi this 9th day of May, 2019
R. NYAKUNDI,
JUDGE OF THE HIGH COURT