[2006] KEHC 948 (KLR)
The court found that the applicants had established a prima facie case warranting the grant of leave to institute judicial review proceedings against the regulations made by the Minister for Tourism and Wildlife. However, the court declined to direct that leave should operate as a stay of the implementation of the...
Source-derived case information.
- Citation
- [2006] KEHC 948 (KLR)
- Parties
- Applicant: Zuberi Hamadi & 30 Others; Applicant: The Republic; Respondent: Minister for Tourism and Wildlife; Interested Party: Director of Kenya Wildlife Conservation and Management Services
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 976 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Leave to Apply for Judicial Review and Stay
- Outcome
- Leave to apply for judicial review granted; application for stay declined.
- Legal Topics
- Judicial Review, Leave to Apply, Stay of Implementation, Public Participation, Regulatory Consultation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zuberi Hamadi & 30 Others
Applicant
The Republic
Applicant
Minister for Tourism and Wildlife
Respondent
Director of Kenya Wildlife Conservation and Management Services
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Leave to Apply for Judicial Review and Stay
Legal Issues
- 1 Whether the applicants have established a prima facie case to warrant leave to institute judicial review proceedings against the regulations made by the Minister for Tourism and Wildlife.
- 2 Whether leave should operate as a stay of the implementation of the impugned regulations.
Ratio Decidendi
The court found that the applicants had established a prima facie case warranting the grant of leave to institute judicial review proceedings against the regulations made by the Minister for Tourism and Wildlife. However, the court declined to direct that leave should operate as a stay of the implementation of the regulations, reasoning that the applicants delayed in seeking relief despite having notice of the impending regulations. Granting a stay at this stage would cause confusion and inconvenience to the respondent and other stakeholders, as the regulations had already been in operation for over three months. The court exercised its discretion against granting a stay, emphasizing the...
Court Disposition
Leave to apply for judicial review granted; application for stay declined.
Orders
- Leave of 21 days is granted to the applicants to file the substantive application for judicial review.
- The request that leave operates as a stay of the implementation of the regulations is declined.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Misc Civ Appli 976 of 2006
IN THE MATTER OF: THE WILDLIFE (CONSERVATION MANAGEMENT) ACT (CAP 376 LAWS OF KENYA)
AND
IN THE MATTER OF: THE WILDLIFE (CONSERVATION AND MANAGEMENT (NATIONAL PARKS AMENDMENT REGUALTIONS, 2006
AND
IN THE MATTER OF:
THE REPUBLIC................................................................................................................APPLICANT
VERSUS
THE MINISTER FOR TOURISM AND WILDLIFE…………………..........……..RESPONDENT
EXPARTE
1. ZUBERI HAMADI & 30 OTHERS…………..........................................……….APPLICANTS
AND
THE DIRECTOR OF KENYA WILDLIFE CONSERVATION AND
MANAGEMENT SERVICES……………….........................................…INTERESTED PARTY
RULING
Zuberi Hamadi and 30 others, hereinafter referred to as the ‘Applicants’ sought for leave to institute judicial review proceedings in the nature of certiorari to bring into this court the Regulations made by the Minister for Tourism and Wildlife, hereinafter referred to as the ‘Respondent,’ and published in the special issue of the Kenya gazette supplement No. 31 of 12-5-2006 for purposes of quashing. The Applicants have also urged this court to direct leave to operate as a stay of the implementation of the regulations.
It is the argument of the Applicants that they would convince this court hat it was necessary for the Respondent to consult the Applicants being the operators of boat excursions business at various marine parks along the Kenyan Coastline before making the regulations. After a careful consideration of the Applicants’ exparte arguments I am convinced that they have shown that they have a prima facie case. Consequently leave of 21 days is given to the Applicants to file the substantive application.
I have been urged to direct that leave should operate as a stay of the implementation of the regulations. I have perused a copy of the regulations which are annexed to the verifying affidavit of Bakari Masuo Bakari. It is evident that the regulations were published on 12th May 2006. The effect of which was to give notice of intention to increase park fees as from 1st July 2006. The regulations have now been in operation for about 3 ½ months. The question which lingers in my mind is why didn’t the Applicants seek for such a remedy in time? The Respondent gave them and the rest of the world a period of about 2 months notice with effect from 12th May 2006 to 1st July 2006. Why wait until the regulations are in operation and then come to court to paralyze their operations? To grant the order directing leave to operate as a stay will create more confusion and inconvenience the Respondent and the other stakeholders. For the above reasons I decline to direct leave to operate as a stay.
Dated and delivered this 25th day of October 2006
J. K. SERGON
JUDGE
In open court in the presence of counsel for the exparte applicant.