[2012] KEHC 1128 (KLR)
The court declined to grant a stay of proceedings pending appeal, holding that while it has jurisdiction to grant such orders and recognizes the right of access to justice and the right of appeal, these rights must be balanced with the need for expeditious hearing and determination of cases. The matter had been...
Source-derived case information.
- Citation
- [2012] KEHC 1128 (KLR)
- Parties
- Petitioner: Royal Media Services Ltd; Respondent: The Hon Attorney General; Respondent: The Minister of Information and Broadcasting; Respondent: The Communication Commission of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 346 of 2012
- Procedural Posture
- Constitutional Petition / Application for Stay Pending Appeal After Recusal Application Dismissed
- Outcome
- Application for stay of proceedings pending appeal dismissed.
- Judges
- DAS Majanja
- Legal Topics
- Recusal of Judge, Stay of Proceedings, Right of Appeal, Access to Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Royal Media Services Ltd
Petitioner
The Hon Attorney General
Respondent
The Minister of Information and Broadcasting
Respondent
The Communication Commission of Kenya
Respondent
Procedural Posture
Constitutional Petition / Application for Stay Pending Appeal After Recusal Application Dismissed
Legal Issues
- 1 Whether the court should grant a stay of proceedings pending appeal after dismissing an application for recusal of the judge.
- 2 Whether the right of access to justice and right of appeal justify a stay of proceedings in the circumstances.
Ratio Decidendi
The court declined to grant a stay of proceedings pending appeal, holding that while it has jurisdiction to grant such orders and recognizes the right of access to justice and the right of appeal, these rights must be balanced with the need for expeditious hearing and determination of cases. The matter had been pending since August 2012, was ready for hearing, and interim orders had been maintained by consent. The court found no sufficient justification to delay the proceedings further and exercised its discretion to direct that the hearing proceed as scheduled.
Court Disposition
Application for stay of proceedings pending appeal dismissed.
Orders
- The application for stay of proceedings is declined.
- The matter is to proceed for hearing as scheduled.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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ROYAL MEDIA SERVICES LTD ........................................................... PETITIONER
AND
THE HON ATTORNEY GENERAL ................................................ 1ST RESPONDENT
THE MINISTER OF INFORMATION AND BROADCASTING .....2ND RESPONDENT
THE COMMUNICATIONCOMMISSION OF KENYA ................. 3RD RESPONDENT
RULING NO. 3
1. I have dismissed an application by the petitioner to have me recuse myself from hearing this matter. The petitioner’s counsel has applied for a stay pending appeal to take steps to challenge my decision on appeal.
2. I have heard the parties and I take the following view of the matter. First, this court has jurisdiction to grant stay pending appeal whether formally or informally on such terms as it deems fit. (See Ihugo Mwaura v AG) Secondly, whether or not to grant an order of stay is a matter for the court’s discretion dependent on the circumstances of the case.
3. This suit was filed in August 2012, under certificate of urgency in view of the nature of the matter, the application or conservatory orders was not argued but parties took steps to have the matter heard on merit. In the meantime, the parties agreed that interim orders be maintained. Directions were issued to expedite the matter and it is agreed by both parties that the matter is ready for hearing.
4. The right of access to justice under Article 48 does not operate in a vacuum nor does it belong to one party, it must be seen in the light of each case. The right of appeal is an integral part of this right and so is the power of the court to order stay of proceedings. All these matters must be balanced in light of the circumstances.
5. I decline to grant an order for stay of proceedings and I direct that the matter fixed for hearing today to proceed as scheduled.
DATEDandDELIVEREDatNAIROBIthis 6th day of November 2012
D.S. MAJANJA
JUDGE
Dr Kamau Kuria, S.C., instructed by Kamau Kuria and Kiraitu Advocates for the petitioner.
Mr Ojwang’, Litigation Counsel, instructed by the State Law Office for the 1st and 2nd respondent.
Mr Kilonzo with him Ms Thanji and Ms Chemtai instructed by Sisule Munyi and Kilonzo Associates Advocates for the 3rd respondent.