[2017] KEHC 3104 (KLR)
The court found that the respondent's affidavit contained inappropriate and reckless averments regarding the choice of forum, which could cast doubt on the impartiality of the proceedings if the matter were to be determined by the same judge. To avoid any perception of bias or impropriety, the judge recused himself...
Source-derived case information.
- Citation
- [2017] KEHC 3104 (KLR)
- Parties
- Applicant: Republic; Respondent: National Environment Management Authority; Respondent: Chief Magistrate’s Court, Kibera Law Courts; Applicant: Taherali Hassan Ali; Applicant: Zoeb Ezzi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 102 of 2017
- Procedural Posture
- Miscellaneous Application / Preliminary Order on Venue and Recusal
- Outcome
- Matter transferred to the High Court sitting in Machakos; judge recused himself from further hearing.
- Legal Topics
- Judicial Review, Certiorari and Prohibition, Venue of Suit, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
National Environment Management Authority
Respondent
Chief Magistrate’s Court, Kibera Law Courts
Respondent
Taherali Hassan Ali
Applicant
Zoeb Ezzi
Applicant
Procedural Posture
Miscellaneous Application / Preliminary Order on Venue and Recusal
Legal Issues
- 1 Whether the High Court at Nairobi is the proper forum for hearing the judicial review application concerning a project located in Machakos County.
- 2 Whether averments in the respondent's affidavit warranted recusal or transfer of the matter to another court.
- 3 Whether the matter falls within the jurisdiction of the Environment and Land Court under section 13 of the Environment and Land Court Act.
Ratio Decidendi
The court found that the respondent's affidavit contained inappropriate and reckless averments regarding the choice of forum, which could cast doubt on the impartiality of the proceedings if the matter were to be determined by the same judge. To avoid any perception of bias or impropriety, the judge recused himself and directed that the matter be heard by the High Court sitting in Machakos. The court further held that the substance of the application concerned alleged abuse of criminal process, not a substantive land or environmental dispute, and thus did not fall within the exclusive jurisdiction of the Environment and Land Court under section 13 of the Environment and Land Court Act.
Court Disposition
Matter transferred to the High Court sitting in Machakos; judge recused himself from further hearing.
Orders
- This matter shall be heard by the High Court sitting in Machakos.
- The current judge recuses himself from further proceedings in this matter.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS (JUDICIAL REVIEW DIVISION)
MISCELLANEOUS CIVIL APPLICATION NO. 102 OF 2017
IN THE MATTER OF: AN APPLICATION BY TAHERALI HASSAN ALI AND ZOEB EZZI FOR LEAVE TO APPLY FOR JUDICIAL REVIEW UNDER SECTION 8 &9 OF THE LAW REFORM ACT CHAPTER 26 OF THE LAWS OF KENYA AND ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010 LAWS OF KENYA
AND
IN THE MATTER OF: AN APPLICATION FOR ORDERS OF CERTIORARI AND PROHIBITION
AND
IN THE MATTER OF: THE NATIONAL ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT, CHAPTER 387 LAWS OF KENYA
AND
IN THE MATTER OF: THE OCCUPATION OF THE UNITS ERECTED ON ALL THAT PROPERTY KNOWN AS LAND REFERENCE NUMBER 12715/290
AND
IN THE MATTER OF: CRIMINAL CHARGES PREFERRED AS AGAINST TAHERALI HASSAN ALI AND ZOEB EZZI IN KIBERA CRIMINAL CASE NUMBER 4174 OF 2016 (R VS TAHERALI HASSAN ALI & ANOR)
BETWEEN
REPUBLIC……………………….……....….………………APPLICANT
VERSUS
NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY………………………….…………..…..1ST RESPONDENT
CHIEF MAGISTRATE’S COURT, KIBERA
LAW COURTS……………………………….….…....2ND RESPONDENT
EXPARTE: TAHERALI HASSAN ALI AND ZOEB EZZI
ORDER
1. I was in the course of drafting the judgement which was scheduled for delivery on 21st September, 2017 when I came across a curious paragraph in the replying affidavit of the 1st Respondent being paragraph 13 thereof which states as follows:
THAT the project site location (Machakos County) and the choice of Court that the exparte applicants have taken for these proceedings being the High Court at Nairobi as opposed to the Machakos or even Nairobi ELC is suspect and am advised by E.K Gitonga advocate that the 1st respondent should raise a preliminary issue on a point of law.
2. There were other paragraphs in the said affidavit which with due respect to the advocate who drew the same have no place in an affidavit which should contain only factual averments. Instead of making such a reckless averment in an affidavit, Counsel ought simply to have applied that the matter be heard in Machakos. I must point out that such reckless averments are, with due respect to counsel, becoming common in this country.
3. Having considered the depositions in the affidavit, it is my view that in order for the decision herein not to be seen to have been influenced by the said misplaced averments, let this matter be heard and determined by another Court. It is regrettable that a matter which should have been determined has to be delayed due to uncalled for averments in an affidavit which if due diligence had been exercised by counsel would have been avoided.
4. I am however not in agreement that this matter falls within section 13 of the Environment and Land Court Act since the substratum of these proceedings revolve around whether the criminal proceedings amount to abuse of the Court process.
5. In the premises I direct that this matter be heard by the High Court sitting in Machakos.
6. It is so ordered.
Dated at Nairobi this 21st day of September, 2017
G V ODUNGA
JUDGE
Delivered in the presence of:
Mr Njenga for Mr Luseno for the applicant
Mr E K Gitonga for the Respondent
CA Ooko