[2008] KEHC 1972 (KLR)
The court found that the applicant had demonstrated sufficient interest and raised issues that require investigation, thus establishing a prima facie arguable case. Leave to commence judicial review proceedings was therefore granted. However, the court declined to grant a stay of the dismissal, reasoning that it...
Source-derived case information.
- Citation
- [2008] KEHC 1972 (KLR)
- Parties
- Applicant: Richard Orina Mogire; Respondent: Commissioner of Police; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 311 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Leave to Commence Judicial Review Proceedings
- Outcome
- leave granted to file judicial review; stay declined
- Legal Topics
- Judicial Review, Fair Hearing, Public Service Dismissal, Certiorari, Mandamus, Prohibition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Orina Mogire
Applicant
Commissioner of Police
Respondent
The Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Leave to Commence Judicial Review Proceedings
Legal Issues
- 1 Whether the applicant was afforded a fair hearing before dismissal from the police force.
- 2 Whether the applicant has demonstrated sufficient interest and an arguable case to warrant leave for judicial review.
- 3 Whether leave, if granted, should operate as a stay of the dismissal and stoppage of salary.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient interest and raised issues that require investigation, thus establishing a prima facie arguable case. Leave to commence judicial review proceedings was therefore granted. However, the court declined to grant a stay of the dismissal, reasoning that it would not be in the interest of justice to stay a dismissal that had already been effected and communicated. The court emphasized that the issues raised could only be properly canvassed once the respondents are served and have an opportunity to respond in the main motion.
Court Disposition
leave granted to file judicial review; stay declined
Orders
- Leave is granted to the applicant to file Judicial Review proceedings for certiorari, mandamus and prohibition within 21 days.
- Stay orders are declined.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc. Appli. 311 of 2008
RICHARD ORINA MOGIRE…..……....…..……………… APPLICANT
V E R S U S
COMMISSIONER OF POLICE……..…..……….. 1ST RESPONDENT
THE ATTORNEY GENERAL…………………….2ND RESPONDENT
R U L I N G
This is a Chamber Summons filed by Billy Amendi & Co. Advocates dated 26th May, 2006, on behalf of the applicant RICHARD ORINA MOGIRE. The respondents are named as COMMISSIONER OF POLICE and THE ATTORNEY – GENERAL. It is an application for leave to file Judicial Review proceedings for certiorari, mandamus and prohibition. The applicant also prays that leave, if granted, do operate as a stay of the order of the Public Service Commission (Police force) dismissing the applicant. The application has grounds on the face of the Chamber Summons. It was filed with a supporting affidavit, and statement of facts and an affidavit verifying the facts in the statement.
The application was filed under certificate of urgency and was ex-parte. I heard the application on 27/5/2008.
Ms. Rugut, Counsel for the applicant submitted that the applicant was not afforded a fair hearing before his dismissal. That was what necessitated this application for leave to file Judicial Review proceedings. Counsel contended that the Applicant wants the Public Service Commission to provide him with copies of the disciplinary proceedings. He also asks that leave, if granted, do operate as a stay of his dismissal and stoppage of salary.
I have considered the application, documents filed and submissions of Counsel for the applicant. In my view, the applicant has demonstrated a sufficient interest, and the issues raised require investigations by this court. The applicant has a prima facie arguable case. The issues raised can only be canvassed if the applicant is granted leave to file Judicial Review proceedings, and the respondents are served and appear in court to clarify those issues. I will grant leave as sought.
On stay, I will not grant stay orders. It will not be in the interest of justice. It is impossible to stay a dismissal that has already been done and communicated. I will therefore not grant stay orders.
Consequently, I order as follows-
1. Leave be and is hereby granted to the applicant to file Judicial Review proceedings for certiorari, mandamus and prohibition as requested in prayer 2 of the Chamber Summons. The main motion will be filed within 21 days from today.
2. I decline to grant stay orders.
3. Costs in the cause.
It is so ordered.
Dated and delivered at Nairobi this 18th day of June, 2008.
GEORGE DULU
JUDGE.
In the presence of-
Mr. Rugut for applicant
Mwangi Court Clerk.