[2023] KEELC 16059 (KLR)
The court exercised its discretion to decline the grant of a stay order at the ex parte stage, emphasizing that such an order should only be considered after proper service has been effected on all parties. The court found that the applicant's service of the substantive motion was inadequate, and therefore, the...
Source-derived case information.
- Citation
- [2023] KEELC 16059 (KLR)
- Parties
- Applicant: Republic; Respondent: National Land Commission; Interested Party: Peminus Kangethe Thiru; Interested Party: Eliud Nga’ng’a Thiru; Exparte: Talaki Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Civil Miscellaneous Application E025 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Stay Pending Judicial Review
- Outcome
- Application for stay declined at ex parte stage; issue to be revisited after proper service.
- Judges
- LN Mbugua
- Legal Topics
- Judicial Review, Stay of Proceedings, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
National Land Commission
Respondent
Peminus Kangethe Thiru
Interested Party
Eliud Nga’ng’a Thiru
Interested Party
Talaki Limited
Exparte
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Stay Pending Judicial Review
Legal Issues
- 1 Whether leave granted to apply for judicial review should operate as a stay of proceedings or actions by the National Land Commission regarding complaint No NLC/HLI/3665/2021.
- 2 Whether the ex parte applicant is entitled to a stay order at this stage before proper service on all parties.
Ratio Decidendi
The court exercised its discretion to decline the grant of a stay order at the ex parte stage, emphasizing that such an order should only be considered after proper service has been effected on all parties. The court found that the applicant's service of the substantive motion was inadequate, and therefore, the issue of stay would be addressed once all parties had been properly served. The court relied on Order 53 Rule 1(4) of the Civil Procedure Rules and relevant case law to support its decision that the grant of a stay is not automatic upon leave being granted, but rather a matter for the court's discretion, particularly where service is in question.
Court Disposition
Application for stay declined at ex parte stage; issue to be revisited after proper service.
Orders
- Prayer no. 5 for stay is declined at this ex parte stage.
- The issue of stay will be considered after proper service on all parties.
Full Case Text
Judgment text and source record
26 paragraphs
Republic v National Land Commission; Thiru & another (Joined as the Chairman and Secretary of Mbari Ya Thiru Welfare Group) (Interested Party); Talaki Limited (Exparte) (Environment and Land Civil Miscellaneous Application E025 of 2022) [2023] KEELC 16059 (KLR) (9 March 2023) (Ruling)
Neutral citation: [2023] KEELC 16059 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment and Land Civil Miscellaneous Application E025 of 2022
LN Mbugua, J
March 9, 2023
Between
Republic
Applicant
and
The National Land Commission
Respondent
and
Peminus Kangethe Thiru & Eliud Nga’ng’a Thiru (Joined as the Chairman and Secretary of Mbari Ya Thiru Welfare Group)
Interested Party
and
Talaki Limited
Exparte
Ruling
1. On December 6, 2022, the Ex Parte Applicant was granted leave to apply for judicial review orders. This ruling concerns prayer 5 in the Ex Parte Applicant’s chamber summons application dated December 6, 2022. The said prayer seeks orders that leave granted herein operates as stay against the proceedings, actions or any decision in respect to admission, review, proceedings or determination of complaint No NLC/HLI/3665/2021 lodged on September 20, 2021 by the Interested Party before the Respondent or any such review by the Respondent of grant or disposition of or title to or affecting private land known as LR No. 1159/340 (Original 1149/112/3) and Title No 94978 registered in the name of the Ex parte –Applicant pending the hearing and determination of the judicial review suit.
2. The decision whether to grant a stay of this nature is discretionary. Order 53 Rule 1(4) of the Civil Procedure Rules provides:“The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise: Provided that where the circumstances so require, the judge may direct that the application be served for hearing inter parties before grant of leave…...”
3. In Taib A. Taib v Minister for Local Government & 3 Others [2006] eKLR the court held;“… The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made… ”.
4. On December 6, 2022, the court declined to grant any stay orders and only allowed prayers No 2, 3 and 4. Further, the court directed the applicant to effect service of the substantive motion within 21 days. The nature of service conducted by the applicant was found wanting by this court on February 15, 2023.
5. In the final analysis, I decline to grant prayer no. 5 at this exparte stage. The issue of stay is to be dealt with once proper service has been effected upon all the parties.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9THDAY OF MARCH, 2023 THROUGH MICROSOFT TEAMS.LUCY N MBUGUAJUDGEIn the presence of:-Olala holding brief for Mr Litoro for Exparte ApplicantCourt assistant: VanillaELC MISC CIVIL APPL NO. E025 OF 2022 (Ruling) Page 2 of 2