[2013] KEHC 752 (KLR)
The court declined to grant the stay sought by the applicant on two main grounds. First, granting the stay at the interlocutory stage would effectively determine the substantive issues in the main motion without giving the respondent a fair opportunity to respond, which would be procedurally unfair. Second, the...
Source-derived case information.
- Citation
- [2013] KEHC 752 (KLR)
- Parties
- Applicant: Republic; Respondent: Masinde Muliro University of Science and Technology; Applicant: Felesia Anindo Omani
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 9 of 2013
- Procedural Posture
- Judicial Review / Ruling on Interlocutory Application for Stay
- Outcome
- application for stay dismissed
- Judges
- GMA Dulu
- Legal Topics
- Judicial Review Procedure, University Disciplinary Actions, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Masinde Muliro University of Science and Technology
Respondent
Felesia Anindo Omani
Applicant
Procedural Posture
Judicial Review / Ruling on Interlocutory Application for Stay
Legal Issues
- 1 Whether the court should grant a stay of the decision expelling the applicant from the university pending determination of the substantive motion.
- 2 Whether granting the stay at this interlocutory stage would pre-empt the main issues in the substantive motion.
- 3 Whether the applicant's delay in seeking court intervention affects her entitlement to interim relief.
Ratio Decidendi
The court declined to grant the stay sought by the applicant on two main grounds. First, granting the stay at the interlocutory stage would effectively determine the substantive issues in the main motion without giving the respondent a fair opportunity to respond, which would be procedurally unfair. Second, the applicant was aware of the disciplinary proceedings and the upholding of the expulsion decision as early as 13/11/2013 but only sought leave to apply for judicial review on 29/11/2013, just a week before the graduation ceremony. The court found that the delay in seeking relief was attributable solely to the applicant, and such delay disentitled her to the urgent interim relief...
Court Disposition
application for stay dismissed
Orders
- The prayer for stay of the decision expelling the applicant and excluding her from graduation is declined.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
JUDICIAL REVIEW NO. 9 OF 2013
IN THE MATTER OF AN APPLICATION BY FELESIA ANINDO OMANI FOR LAVE TO APPLY FOR JUDICIAL REVIEW
AND
IN THE MATTER OF THE UNIVERSITY ACT
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA
BETWEEN
REPUBLIC …...........................…..………..…….. APPLICANT
AND
MASINDE MULIRO UNIVERSITY OF
SCIENCE AND TECHNOLOGY …………………. RESPONDENT
EX-PARTE
FELESIA ANINDO OMANI ……………. EX-PARTE APPLICANT
RULING
Yesterday this court granted leave to the applicant to file Judicial Review proceedings as requested in a Chamber Summons for leave dated 29th November, 2013. However, the court ordered that the request for stay under prayer (iv) of the Chamber Summons be heard inter-partes today after service.
The said prayer is in the following terms –
“That the grant of this leave do operate as stay of the decision of the Ad Hoc Committee of the Senate of Masinde Muliro University of Science and Technology expelling the applicant from the university and consequently excluding her from the graduation ceremony scheduled for 6/12/2013. ”
It has been raised and not contested that the Chamber Summons was not served. Instead the substantive Notice of Motion was served on the respondent.
At the hearing of the request for stay above, Mr. Namatsi appeared for the applicant while Mr. Ombaye appeared for the respondent. Mr. Ombaye asked to be granted more time for the respondent to file a response. However, as the graduation is scheduled to take place tomorrow (6/12/13), I told counsel to address the court on the request and they did so. I have considered the respective submissions of counsel.
In my view, from the facts and issues disclosed in this matter, the prayer for stay requested cannot be granted at this stage. Firstly, granting the said prayer will determine the substantive issues in contest in the main motion, without granting the respondent an opportunity to substantively respond. Orders as those requested in the said prayer, in my view, should not be granted at an interlocutory stage.
Secondly, the applicant knew vide letter to her dated 13/11/2013, that she was subject to a disciplinary case, and that her appeal against the decision of a Senate Ad Hoc Committee had been dismissed. The decision of the Ad Hoc Committee had been upheld. If she had an interest of protecting her interests quickly through the courts, she should have moved the court earlier, and not file an application for leave on 29/11/13 just a week before the graduation ceremony. The delay cannot be blamed on anybody other than the applicant.
Considering the above facts and circumstances, I am of the view that the stay orders sought in the Chamber Summons for leave, are not merited. I decline to grant the stay sought.
Dated and delivered at Kakamega this 5th day of December, 2013
GEORGE DULU
JUDGE