[2020] KEHC 5152 (KLR)
The court found that the applicants failed to file a substantive application for judicial review within 21 days after leave was granted, as required by Order 53 Rule 3(1) of the Civil Procedure Rules. Consequently, the stay orders issued at the time of granting leave lapsed after the expiry of the 21-day period....
Source-derived case information.
- Citation
- [2020] KEHC 5152 (KLR)
- Parties
- Applicant: Republic; Respondent: Vihiga Teachers Benevolent Executive Committee; Respondent: Benson Amugune Ngoda; Respondent: Boniface Yidah Mujivane; Respondent: Joshua Adaro Aganya; Applicant: Erastus Ingara; Applicant: Solomon Mukangai; Applicant: Job Chanzu; Applicant: Cossam Igesa; Applicant: Reuben Oriedo; Applicant: Louisa Ijiimba; Applicant: Keneth Muhavi; Applicant: Peter Munubi; Applicant: David Omwela
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 5 of 2019
- Procedural Posture
- Judicial Review / Ruling on Contempt Application and Status of Judicial Review Proceedings
- Outcome
- application dismissed with costs to the respondents
- Judges
- CM Njagi
- Legal Topics
- Judicial Review Procedure, Contempt of Court, Leave to Apply, Lapse of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Vihiga Teachers Benevolent Executive Committee
Respondent
Benson Amugune Ngoda
Respondent
Boniface Yidah Mujivane
Respondent
Joshua Adaro Aganya
Respondent
Erastus Ingara
Applicant
Solomon Mukangai
Applicant
Job Chanzu
Applicant
Cossam Igesa
Applicant
Reuben Oriedo
Applicant
Louisa Ijiimba
Applicant
Keneth Muhavi
Applicant
Peter Munubi
Applicant
David Omwela
Applicant
Procedural Posture
Judicial Review / Ruling on Contempt Application and Status of Judicial Review Proceedings
Legal Issues
- 1 Whether the applicants' failure to file a substantive judicial review application within 21 days after leave rendered the proceedings a nullity.
- 2 Whether the respondents were in contempt of court for conducting elections after the lapse of the stay orders.
Ratio Decidendi
The court found that the applicants failed to file a substantive application for judicial review within 21 days after leave was granted, as required by Order 53 Rule 3(1) of the Civil Procedure Rules. Consequently, the stay orders issued at the time of granting leave lapsed after the expiry of the 21-day period. Since there was no pending suit or subsisting order, the respondents could not be held in contempt for conducting elections after the lapse of the stay orders. The application for contempt was therefore incompetent and was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application dated 15th August, 2019 is dismissed with costs to the respondents.
- There is no suit for judicial review pending before court.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
JUDICIAL REVIEW NO. 5 OF 2019
IN THE MATTER OF ORDER 53 RULE 1 OF THE CIVIL PROCEDURE ACT
AND
IN THE MATTER OF THE KENYA NATIONAL UNION OF TEACHERS CONSTITUITION OF RULES AND REGULATIONS
AND
IN THE MATTER OF VIHIGA TEACHERS BENEVOLENT FUND
BETWEEN
REPUBLIC............................................................................APPLICANT
VERSUS
VIHIGA TEACHERS BENEVOLENT
EXECUTIVE COMMITTEE..................................1ST RESPONDENT
BENSON AMUGUNE NGODA.............................2ND RESPONDENT
BONIFACE YIDAH MUJIVANE..........................3RD RESPONDENT
JOSHUA ADARO AGANYA..................................4TH RESPONDENT
EX-PARTE:
1. ERASTUS INGARA
2. SOLOMON MUKANGAI
3. JOB CHANZU
4. COSSAM IGESA
5. REUBEN ORIEDO
6. LOUISA IJIIMBA
7. KENETH MUHAVI
8. PETER MUNUBI
9. DAVID OMWELA
RULING
1. The applicants had on the 3rd April, 2019 filed an application seeking for leave to apply for judicial review orders against the respondents. The court granted leave on the 4th April, 2019. The court further granted orders for stay of elections scheduled for 17th April, 2019.
2. On the 15th august, 2019 the applicants filed an application seeking to have the respondents cited for contempt for carrying out elections contrary to the orders of the court issued on 4th April, 2019. The respondents in turn filed a notice of preliminary objection dated 13th September, 2019 terming the application dated 15th August, 2019 as incompetent and disclosing no grounds.
3. The advocates for the applicants proceeded to file submissions in respect to the application for judicial review dated 3rd April, 2019 and the contempt of court application dated 15th August, 2019. The advocates for the respondents filed submissions in respect to the two applications. I have perused the court file and noted that no application for judicial review orders was filed after leave was granted. This means that there is currently no suit pending before court. It is preposterous to note that the applicant’s submissions were on the application dated 4th April, 2019, which application had already been allowed by the court.
4. Order 53 Rule 3 (1) fixes the time for filing of an application for judicial review after leave is granted at 21 days. The respondents are said to have conducted elections on the 4th May and 6th July, 2019. The stay orders issued on 4/4/2019 only stopped the holding of elections scheduled for 17/4/2019. In my considered view the stay orders granted by the court at the time when leave was granted lapsed at the time when the applicants failed to file the application for judicial review within 21 days. There cannot be any contempt of court for any elections held by the respondents after the end of 21 days.
5. In the foregoing there is no suit for judicial review pending before court. There was no contempt of court by the respondents. The upshot is that the application dated 15th August, 2019 is dismissed with costs to the respondents.
Delivered, dated and signed at Kakamega this 5th day of June, 2020.
J. N. NJAGI
JUDGE
Representation:
No appearance for Applicant
No appearance for Respondents
No appearance for Ex-parte Applicants
Ex-parte Applicants - Absent
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