[2020] KEHC 3354 (KLR)
The court found that the applicant had demonstrated urgency due to the imminent risk of water disconnection and the respondent's intention to enforce the disputed demand. The court acknowledged the applicant's claim that no alternative remedy was available, as the Water Appeals Board was not constituted. However,...
Source-derived case information.
- Citation
- [2020] KEHC 3354 (KLR)
- Parties
- Applicant: Osman Batur Dedeoglu; Respondent: Nairobi City Water and Sewerage Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application E011 of 2020
- Procedural Posture
- Judicial Review Application / Ruling on Leave and Interim Orders
- Outcome
- Leave granted to serve application; interim orders issued; matter to be heard inter partes.
- Judges
- P Nyamweya
- Legal Topics
- Judicial Review, Leave for Certiorari, Prohibition Orders, Public Body Decisions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Osman Batur Dedeoglu
Applicant
Nairobi City Water and Sewerage Company Limited
Respondent
Procedural Posture
Judicial Review Application / Ruling on Leave and Interim Orders
Legal Issues
- 1 Whether the applicant is entitled to leave to apply for judicial review orders of certiorari and prohibition against the respondent's demand for payment.
- 2 Whether the matter is urgent and warrants interim protection from disconnection of water supply.
- 3 Whether the application is time-barred under Order 53 Rule 2 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicant had demonstrated urgency due to the imminent risk of water disconnection and the respondent's intention to enforce the disputed demand. The court acknowledged the applicant's claim that no alternative remedy was available, as the Water Appeals Board was not constituted. However, the court noted that the decision being challenged was made in June 2019, raising the issue of timeliness under Order 53 Rule 2. The court determined that these issues required inter partes hearing and granted leave to serve the application and interim protection from disconnection pending the hearing. The court also issued directions for electronic filing and service in light of...
Court Disposition
Leave granted to serve application; interim orders issued; matter to be heard inter partes.
Orders
- The applicant's Chamber Summons dated 22nd July 2020 is certified as urgent.
- The applicant to serve the respondent with the application, submissions, and ruling within 14 days.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
JUDICIAL REVIEW APPLICATION NO. MISC. E011 OF 2020
IN THE MATTER OF AN APPLICATION FOR LEAVE FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION
BETWEEN
REPUBLIC........................................................APPLICANT
VERSUS
NAIROBI CITY WATER AND SEWERAGE COMPANY
LIMITED.......................................................RESPONDENT
EX PARTE APPLICANT:OSMAN BATUR DEDEOGLU
RULING
The Application
1. Osman Batur Dedeoglu, the ex parte Applicant herein, is aggrieved by the decision by the Nairobi City Water and Sewerage Company (the Respondent herein), to demand from him the sum of Kshs. 2,392,263. 25/ in a letter dated 17th June 2019, alleged to be owed as water bills for meter number 1998875.
2. The ex parte Applicant has consequently moved this Court in an application made by way of a Chamber Summons dated 22nd July 2020, seeking the following orders:
1. That that the Applicants Chamber Summons dated 22nd day of July 2020 be certified urgent and be admitted for hearing ex parte in the first instance.
2. Leave be granted to the applicant to apply for judicial review by way of an order of prohibition restraining the Respondent whether by themselves, agents, servants or employees from disconnecting and interfering with the Applicant’s enjoyment of water supply through meter number 1998875.
3. Leave be granted to the applicant to apply for judicial review by way of an order of certiorari quashing the decision of the respondent demanding the payment of the disputed sum of Kshs. 2,392,263. 25/=.
4. That pending the hearing and determination of this suit, temporary injunction be granted restraining the Respondent whether by themselves, agents, servantsor employees from disconnecting and interfering with the Applicant’s enjoyment of water through meter number 1998875.
5. The costs of this application be in the cause.
3. The application is supported by a statutory statement dated 22nd July 2020, and a verifying affidavit sworn on the same date by the ex parte Applicant. The main ground for the application is that the ex parte Applicant has requested the Respondent to issue a statement of account which it relied upon to arrive at the demanded sum of Kshs.2,392,263. 25/=, but the Respondent has failed to respond. Further, that there is no alternative remedy available to the applicant as the membership of the Water Appeals Board is currently not constituted.
4. The ex parte Applicant annexed a copy of the Respondent’s demand letter dated 17th June 2019, as well as evidence of payment of its water bills for meter number 1998875.
The Determination
5. I have considered the application dated 22nd July 2020 and the reasons offered in support of the urgency, and I am satisfied that the ex parte Applicant has demonstrated that this matter is urgent as the Respondent has indicated it intends to enter the demanded amount to the ex parte Applicant’s account, and the ex parte Applicant has also stated that there is the risk that his water supply for meter number 1998875 may then be disconnected for non-payment.
6. I however note that the decision sought to be quashed was given in June 2019, and the provisions of Order 53 Rule 2 of the Civil Procedure Rules as regards the circumstances when leave can be granted to apply for an order of certiorari become relevant. In addition, the ex parte Applicant needs to persuade the Court that the dispute herein is one that is amenable to judicial review, and the Chamber Summons application dated 22nd July 2020 therefore needs to be canvassed inter partes.
The Orders
1. In light of the foregoing observations and findings, I accordingly grant the following orders:
I. The ex parte Applicant’s Chamber Summons application dated22nd July 2020be and is hereby certified as urgent.
II. Theex parteApplicant shall serve the Respondent with the Chamber Summons application dated22nd July 2020 together with skeletal submissions thereon, a copy of this ruling, and a hearing date within fourteen (14) days of today’s date.
III. The Respondent is granted leave to file and serve a response to and skeletal submission on the Chamber Summons dated 22nd July 2020 within fourteen (14) days of service by the ex parte Applicant
IV. The ex parte Applicant’s Chamber Summons application dated22nd July 2020shall be heard on 2nd September 2020.
V. Pending the hearing on 2nd September 2020, the Respondent is retrained fromdisconnecting and/or interfering with the Applicant’s enjoyment of water through meter number 1998875 on account of the demand made in its letter dated 17th June 2019.
VI. In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear and determine the ex parte Applicant’s Chamber Summons application dated22nd July 2020 on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.
VII. All the parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies by electronic mail to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comandasunachristine51@gmail.com.
VIII. The electronic copies of pleadings and documents sent by the parties shall be clearly and correctly titled to indicate the J.R Case Number, the description of the Party sending it (that is whether the Ex Parte Applicant, Respondent or Interested Party), and the nature of the pleading or document.
IX. The service of pleadings and documents directed by the Court shall be by way of personal service andelectronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comwith copies to asunachristine51@gmail.com.
X. The parties shall also be required to file and send to the Deputy Registrar of the Judicial Review Division their respective affidavits of service evidencing personal service, by way of electronic mail tojudicialreview48@gmail.comwith copies to asunachristine51@gmail.com.
XI. The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for hearing on2nd September 2020.
XII. The Deputy Registrar ofthe Judicial Review Division shall send a copy of these directions to the ex parte Applicant by electronic mail by close of business on Friday, 24th July 2020.
XIII. Parties shall be at liberty to apply.
7. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF JULY 2020
P. NYAMWEYA
JUDGE