[2021] KEHC 1261 (KLR)
The court found that the applicant was not given an opportunity to be heard before the orders were issued by the 5th respondent, thereby violating the principle of natural justice. The magistrate ought to have summoned the applicant to explain his position regarding the issuance of the introduction letter. The...
Source-derived case information.
- Citation
- [2021] KEHC 1261 (KLR)
- Parties
- Applicant: Levis Okello; Respondent: Sandra Ouma; Respondent: Richard Ouma; Respondent: Vera Ouma; Respondent: Frida Ouma; Respondent: Senior Resident Magistrate Mbita Law Courts; Respondent: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application E001 of 2021
- Procedural Posture
- Judicial Review Application / Ruling on Leave and Stay Application
- Outcome
- Application allowed in terms of prayers 1 and 2. Costs to be borne by the 1st to 4th respondents.
- Legal Topics
- Judicial Review, Certiorari, Natural Justice, Jurisdiction of Subordinate Courts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Levis Okello
Applicant
Sandra Ouma
Respondent
Richard Ouma
Respondent
Vera Ouma
Respondent
Frida Ouma
Respondent
Senior Resident Magistrate Mbita Law Courts
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Judicial Review Application / Ruling on Leave and Stay Application
Legal Issues
- 1 Whether the decision of the 5th respondent awarding costs to the 1st to 4th respondents was amenable to judicial review.
- 2 Whether the applicant was condemned unheard in violation of natural justice.
- 3 Whether the subordinate court had jurisdiction to issue the impugned orders.
Ratio Decidendi
The court found that the applicant was not given an opportunity to be heard before the orders were issued by the 5th respondent, thereby violating the principle of natural justice. The magistrate ought to have summoned the applicant to explain his position regarding the issuance of the introduction letter. The actions of the 5th respondent were administrative and subject to judicial review. The court allowed the application for leave to apply for certiorari and ordered that such leave operate as a stay of further proceedings in the subordinate court matters. Costs were awarded against the 1st to 4th respondents.
Court Disposition
Application allowed in terms of prayers 1 and 2. Costs to be borne by the 1st to 4th respondents.
Orders
- Leave granted to apply for an order of certiorari to quash the decision of the 5th respondent dated 10th December 2020.
- Leave to operate as a stay of further proceedings in Mbita SRM Misc. Civil Application No. E001 of 2020 and Mbita SRM Succ. No. 57 of 2020.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
JUDICIAL REVIEW APPLICATION NO. E001 OF 2021
LEVIS OKELLO..............................................................................EX PARTE APPLICANT
VERSUS
SANDRA OUMA........................................................................................1ST RESPONDENT
RICHARD OUMA....................................................................................2ND RESPONDENT
VERA OUMA .......................................................................................... 3RD RESPONDENT
FRIDA OUMA .........................................................................................4TH RESPONDENT
SENIOR RESIDENT MAGISTRATE MBITA LAW COURTS.........5TH RESPONDENT
THE HON. ATTORNEY GENERAL................................................... 6TH RESPONDENT
RULING
1. Levis Okello, the ex parte applicant moved the court under Order 53 Rule 1 (i) and Order 53 Rule 7 of the Civil Procedure Rules. He is seeking the following orders:
a) The honorable court be pleased to grant leave to the applicant to apply for an order of certiorari removing into this court for purposes of having quashed the decision of the 5th respondent made on the 10th December, 2020 by virtue of an order for costs awarded in favor of the 1st to 4th respondents in Mbita Senior Resident magistrate court Misc. Civil application no.E001 OF 2020.
b) Upon leave being granted to the applicant to apply for judicial review, such leave to operate as stay of any further proceedings in Mbita SRM MISC, Civil Application NO.E001 of 2020 and Mbita SRM SUCC.NO.57 OF 2020 respectively.
c) The costs of this application be provided for and be made payable by the 1st to 5th respondents.
2. The application is premised on the following grounds:
a) The actions of the 5th respondents are administratively in nature pursuant to the Judicature Act and other laws.
b) The excesses in terms of actions taken by the 5th respondent cannot be appealed against in light of the nature of the actions taken by the 5th respondent.
c) The orders for costs were awarded to the respondent based on bad proceedings as the subordinate court did not have jurisdiction to deal with the application that was presented before it vide Mbita SRM’s court Misc. Civil Application NO.E001 of 2020.
d) The case at Mbita cited herein above was oppressive and an abuse of judicial authority by the 5th respondent.
e) It is in the interest of justice that the orders sought herein be granted.
3. The application was opposed by the 1st to 4th respondents. The 5th and the 6th respondent did not file grounds for opposition or submissions.
4. Levis Okello, the applicant is the chief Rusinga West location in Suba North Sub County of Homa Bay County.
5. The 1st to 4th respondents herein moved the Senior Resident Magistrate’s court at Mbita to compel the applicant to write an introductory letter so that the 1st to 4th respondents could file a succession cause.
6. The orders were issued by the 5th respondent in favour of the 1st to 4th respondents with costs. This aggrieved the ex parte applicant who moved to this court.
7. The kind of letter of introduction the 1st to 4th respondents required to be written by the ex parte applicant was not an automatic one. Before issuing the orders in favour of the 1st to 4th respondents, the learned magistrate ought to have summoned him so that he could explain his side as to why he was not issuing the introduction letter sought. The ex parte applicant was therefore condemned unheard.
8. The application is allowed in terms of prayers 1 and 2. Costs to be borne by the 1st to the 4th respondents.
DELIVERED AND SIGNED AT HOMA BAY THIS 16TH DAY OF DECEMBER, 2021
KIARIE WAWERU KIARIE
JUDGE.