[2011] KEHC 537 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA

AT KITALE.

MISC. CIVIL APP. NO. 53 OF 2011.

REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT.

VERSUS

SENIOR RESIDENT MAGISTRATE :::::::::::::::::::::::::::::::::::::: 1ST RESPONDENT.

COURT KIMILILI

RICHARD NGASIA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 2ND RESPONDENT.

JUNDUS KULEI ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 3RD RESPONDENT.

PATRICK KIPTIKOT :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 4TH RESPONDENT.

ANITA WILLIAM ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 5TH RESPONDENT.

R U L I N G.

The application before the court is the one dated the 12th of October 2011. It seeks for orders interalia that the leave granted to apply for orders of certiorari to quash the decision of the Senior Resident Magistrate’s decision dated the 26th of April 2011 as prayed in prayer 1 and granted do act as a stay of execution.

That the trial Magistrate lacked jurisdiction to hear and determine the suit.

Initially the advocate wanted the 2 prayers granted at the same time but the court under the provisions of Order 53 rule 4 of the Civil Procedure Rules the proviso to rule 4 which gives the court the discretion to order intealia that parties do appear in court to canvass the issue as to whether leave as granted ought to apply as a stay of execution.

·The application was opposed on the following grounds; THAT, the applicant has moved the court on procedure unknown to the law.

·THAT, the applicant remedy if dissatisfied by the trial court ought to have filed an appeal to the High court as provided by the law and not judicial review.

·THAT, the trial court not being a quasi-judicial body and matter in dispute not related to public law in public nature cannot invoke Judicial review proceedings.

·THAT, by dint of Section 11-18 of the Civil Procedure Act and Kenya Gazette Notice No. 300 contained in CIX – NO. 7 dated 19th January, 2007, this Honourable Court is not seized with jurisdiction to hear this cause.

·THAT, this application is time barred in view of order 53 Rule 2.

Parties agreed to put in written submissions for this matter to be determined.

The issues that need to be determined is whether leave to file judicial review that has been granted ought to act as a stay, the provisions of the civil procedure rules with regard to the immediate foregoing issue,Judicial Review as a remedy, what mode was this matter meant to have been brought before this court? Is this matter res judicata? Whether the application is merited and if therefore the applicant is entitled to the orders sought.

Order 53 rule 4 is to the effect that leave can operate as a stay if the court so directs. It has a proviso to the effect that

‘provided that where the circumstances so require, the judge may direct that the application be served for hearing interpartes before grant of leave. Provided further where the circumstances so require may direct the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within 7 days’

The reading of this is that neither leave nor leave operating as a stay is no longer automatic and the courts are given the discretion to make a finding . this provision has cured the mischief that was found in the previous civil provisions Rules where whenever a leave was granted, it acted as an ad infinitum stay.

Is the leave merited? Ought it to be allowed to act as a stay of proceedings?

It will be improper at this point to go into issues as to whether this is a matter merited for judicial review till all the issues are argued out.

The issue before the court at this point is whether the leave granted ought to act as a stay of execution.

So that at the end of the day the matter is heard and determined on the basis of its own merit and the fact that the application not being so frivolous as to merit summary dealing of the same on the part of the court, the court makes the following finding:

·That the leave will apply as a stay

·Given the fact that the issues raised are not complex they merely touch on a single issue of jurisdiction.

·Given the fact that rules including order 53 of the civil procedure under the overriding principle as outlined in section1A of the Civil Procedure Act are meant to facilitate the just and expeditious resolution of suits,

this court invoking section3A of the CPA orders that the main motion be set down for hearing within the next 90 days.

READ, DATED & SIGNED IN THE OPEN COURT THIS 28TH DAY OF OCTOBER 2011

S.M. MUKETI

JUDGE