[2005] KEHC 1112 (KLR)
The court found that, although the applicant alleges contempt of court following the grant of an Order of Stay, there is insufficient evidence at this stage to establish contempt, particularly as the relevant authorities are not parties to the proceedings and no orders are sought against them. The Gazette Notice...
Source-derived case information.
- Citation
- [2005] KEHC 1112 (KLR)
- Parties
- Applicant: Republic; Respondent: Registrar of Societies; Applicant: Stephen N. Muli; Interested Party: James B. Kiamba; Interested Party: Franklin Makola; Interested Party: Joseph M. Musyoki; Interested Party: Mumo wa Kitusa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 480 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Stay and Directions on Contempt Proceedings
- Outcome
- Application to be heard inter partes; no ex parte orders granted.
- Judges
- AI Tullu
- Legal Topics
- Judicial Review, Contempt of Court, Societies Registration, Interlocutory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Registrar of Societies
Respondent
Stephen N. Muli
Applicant
James B. Kiamba
Interested Party
Franklin Makola
Interested Party
Joseph M. Musyoki
Interested Party
Mumo wa Kitusa
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Stay and Directions on Contempt Proceedings
Legal Issues
- 1 Whether the actions taken after the grant of the Order of Stay constitute contempt of court.
- 2 Whether the court should suspend the swearing in of the new councillor ex parte.
- 3 Whether the Gazette Notice No. 3582 remains valid in the absence of a direct challenge.
Ratio Decidendi
The court found that, although the applicant alleges contempt of court following the grant of an Order of Stay, there is insufficient evidence at this stage to establish contempt, particularly as the relevant authorities are not parties to the proceedings and no orders are sought against them. The Gazette Notice remains valid in the absence of a direct legal challenge. The court held that it would be legally improper to suspend the swearing in of the new councillor ex parte, as this would affect parties not before the court. The application is therefore to be heard inter partes, and the applicant is directed to set the matter down for hearing on its merits. The court will address contempt...
Court Disposition
Application to be heard inter partes; no ex parte orders granted.
Orders
- Application shall be mentioned on 10th November 2005 at 2.30 p.m.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Misc Civ Appli 480 of 2005
IN THE MATTER OF ANA PPLICATION FOR JUDICIAL REVIEW
IN THE MATTER OF THE SOCIETIES ACT CAP 108 LAWS OF KENYA
IN THE MATTER OF ORDER LIII OF THE CIVIL PROCEDURE RULES,
CAP 21 LAWS OF KENYA
IN THE MATTER OF THE NATIONAL PROGRESSIVE PARTY
REPUBLIC………………………..……………………………………….APPLICANT
VERSUS THE REGISTRAR OF SOCIETIES …………………………………RESPONDENT
EX-PARTE
STEPHEN N. MULI…………….…………………………………………APPLICANT
JAMES B. KIAMBA
FRANKLIN MAKOLA
JOSEPH M. MUSYOKI
MUMO WA KITUSA……………………….………………INTERESTED PARTIES
RULING
I have considered the application herein. In my view this is an unusual application. However, if the Order of Stay has been in force from 13th April 2005 and the parties served with the court orders then the ECK and Minister of Local Government ought not have received any proposals to denominate any councillor of the National Progressive Party or nominate a new one. It is not clear how and when the ECK RECEIVED the proposal to denominate the Councillor. But the Orders of Stay was granted on 14th April, 2005. It is also clear that a request to denominate the councillor was sent on 10th Feb. 2005 and by 14th March, 2005 it had been received and acted upon by the Electoral Commission of Kenya.
In the light of the foregoing, the issue of whether there is contempt of court is a matter of determination by this court. The Applicant will have to show the conduct and activities of the Interested Parties that took place after the Order of Stay was first granted and the consent Order of 11th October 2005 also granted. There can be no case of a prima facie case in contempt proceedings. I have also considered the Electoral Commission of Kenya and the Minister of Local Government have not themselves been accused of violating the court orders to the extent of any initiation of contempt proceedings. No orders are sought against them and they are not parties to these proceedings. The actions taken by the Minister of Local Government are under his. The powers under the Local Government Act. The Gazette Notice No. 3582 is and shall remain valid until revoked by the Minister or quashed by a court of law. There is no pending challenge of the Gazette Notice and no proceedings against the Minister and the new councillor nominated. In the circumstances, I think that it would legally risky for this court to suspend the swearing in of the new Councillor ex parte. The effect would be to suspend the operation of Gazette Notice No. 8582 in proceedings where the Minister of Local Government and the new councillor are not parties. I therefore direct that the application be heard Inter Partes and on its merits.
If and when contempt is proven this court will know how to deal with the contemnors. The Applicant can set down the application for hearing.
Dated and delivered at Nairobi on this 8th day of November, 2005.
MOHAMMED K. IBRAHIM
JUDGE
ORDER
Application shall be Mentioned on 10th November 2005 at 2. 30 p.m.
MOHAMMED K. IBRAHIM
JUDGE