[2017] KEHC 7570 (KLR)
The court found that the applicant had complied with the order to deposit Kshs 5 million as security for costs, as evidenced by the documentary record. The subsequent determination of the appeal, which set aside the previous order and dismissed the judicial review application, removed any basis for retaining the...
Source-derived case information.
- Citation
- [2017] KEHC 7570 (KLR)
- Parties
- Applicant: Republic of Kenya; Respondent: Permanent Secretary Ministry of Energy & 5 Others; Respondent: Turkana Drilling Consortium (K) Ltd & 14 Others; Applicant: Intestate Petroleum Company Limited; Applicant: Maosa Kengara Manena; Applicant: Edward Kings Onyancha Maina
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 1 of 2012
- Procedural Posture
- Judicial Review / Ruling on Application for Release of Security for Costs
- Outcome
- application allowed
- Judges
- HK Chemitei
- Legal Topics
- Judicial Review Orders, Security for Costs, Release of Funds, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic of Kenya
Applicant
Permanent Secretary Ministry of Energy & 5 Others
Respondent
Turkana Drilling Consortium (K) Ltd & 14 Others
Respondent
Intestate Petroleum Company Limited
Applicant
Maosa Kengara Manena
Applicant
Edward Kings Onyancha Maina
Applicant
Procedural Posture
Judicial Review / Ruling on Application for Release of Security for Costs
Legal Issues
- 1 Whether the applicant complied with the court order to deposit Kshs 5 million as security for costs.
- 2 Whether the applicant is entitled to the release of the deposited security for costs after the appeal was determined.
- 3 Whether any party, particularly the 3rd subject, would suffer prejudice if the funds are released.
Ratio Decidendi
The court found that the applicant had complied with the order to deposit Kshs 5 million as security for costs, as evidenced by the documentary record. The subsequent determination of the appeal, which set aside the previous order and dismissed the judicial review application, removed any basis for retaining the security. The 3rd subject's objection was dismissed as untimely and unsupported, and no prejudice to any party was established. The court therefore allowed the application for release of the funds and closure of the account, with no order as to costs.
Court Disposition
application allowed
Orders
- The security of costs of Kshs 5 million deposited in Chase Bank Account No. [particulars withheld] in a joint interest-earning account shall be released to the applicant through their counsels on record.
- The said account at Chase Bank shall be closed.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
JUDICIAL REVIEW NO. 1 OF 2012
IN THE MATTER OF: INFRINGMENT AND VIOLATION OF RIGHTS AND FREEDOMS ENSHRINED UNDER THE CONSTITUTION OF THE REPUBLIC OF KENYA
AND
IN THE MATTER OF : AN APPLCIATION FOR LEAVE OF THE COURT TO APPLY FOR JUDICIAL REVIEW ORDERS OF MANDAMUS AND PROHIBITION
BETWEEN
THE REPUBLIC OF KENYA............................................................................APPLICANT
VERSUS
PERMANENT SECRETARY MINSTRY OF ENERGY & 5 OTHERS ….............RESPODNENTS
AND
TURKANA DRILLING CONSORTIUM(K) LTD & 14 OTHERS ….....................INTERESTED PARTIES
EXPARTE
1. INTESTATE PETROLEUM COMPANY LIMITED...THE 1ST SUBJECT
2. MAOSA KENGARA MANENA ....................THE 2ND SUBJECT
3. . EDWARD KINGS ONYANCHA MAINA .......THE 3RD SUBJECT
RULING
The Applicants by their notice of motion dated 18/10/2016 pray for order that;
a) This court do order that the Security of costs of Kshs 5million deposited on the 29th October 2014 in ChaseBank Account No. [particulars withheld ] in a joint interestearning account be released to the applicant throughtheir counsels on record and
b) The said Account at Chase Bank be closed.
The application is supported by the grounds on the face of the Application together with the supporting affidavit of Austin L. Ayisi the applicant's counsel sworn on the even date.
From the said affidavit its clear that on 9/10/2014 this court granted a conditional stay pending the hearing and determination of an intended appeal. The said condition was for the applicant to deposit the sum of Kshs 5 million in a joint account which they did on 1/1/2015 in the name of Anjarwalla & Khanna Advocates and Kiarie & Co. Advocates. The same was confirmed to the court.
Subsequently the appeal was heard and determined on 29/7/2016 where the court allowed the appeal by setting aside the order of 5th May 2013 by this court as well as dismissing the entire judicial review application. This, thereafter paved the way for the applicant to seek the orders herein.
When this matter came up for hearing on 23/11/16 Mr Kiarie Advocate for the 1st subject told the court that he had no objection to the application and therefore the security could be released to the applicant.
The 3rd subject vide his grounds of apposition dated 22/11/16 has argued among others that there is no proof of the deposit of the sum of 5 million and that they failed to comply with the courts orders and are therefore in contempt.
I have perused the application together with the supporting annextures and in particular the decision by the court of Appeal.
I have also perused the submissions by both the applicant and the 3rd subject. I do not subscribe to the position by the 3rd subject that the applicant failed to comply with the court order, namely, depositing the Kshs 5 million in court as ordered. That is too late in the day. The paper trail on record speaks for itself.
The only question is whether the 3rd subject shall suffer any prejudice if the amount is released to the applicant. The answer is No. His cross appeal in any event was dismissed by the court of Appeal. Infact he has no interest in the money. The only critical party was the 2nd subject represented by M/s Kiarie & Co., who have no objection to the application.
In the premises the application dated 18/10/2016 is allowed as prayed with no orders as to costs.
Delivered this 14th day of February 2017.
________________
H.K. CHEMITEI
JUDGE
In the presence of;
Analo for Applicant
Onyancha for 5th Contributor
Court Assistant - Kirong