[2021] KEHC 7938 (KLR)
The court found that granting an order for impounding and placing the motor vehicle in police custody would amount to setting aside its earlier ex parte order staying the impounding of the same vehicle. To avoid conflicting orders and in the interest of justice, the court declined to grant the interim order for...
Source-derived case information.
- Citation
- [2021] KEHC 7938 (KLR)
- Parties
- Applicant: Seth Ambusini Panyako; Respondent: The Independent Electoral and Boundaries Commission; Respondent: The Returning Officer Kakamega County; Respondent: Cleophas Wakhungu Malalah
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Election Petition E001 of 2021
- Procedural Posture
- Election Petitions / Interlocutory Application Ruling
- Outcome
- Interim orders for impounding refused; preservation order granted; matter certified urgent.
- Judges
- RE Aburili
- Legal Topics
- Interim Orders, Preservation of Property, Urgency Certification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Seth Ambusini Panyako
Applicant
The Independent Electoral and Boundaries Commission
Respondent
The Returning Officer Kakamega County
Respondent
Cleophas Wakhungu Malalah
Respondent
Procedural Posture
Election Petitions / Interlocutory Application Ruling
Legal Issues
- 1 Whether the applicant should be granted leave to be heard during court recess.
- 2 Whether interim orders should be issued for the surrender and impounding of motor vehicle registration No. KCQ 490U.
- 3 Whether the court should preserve the subject motor vehicle pending determination of the applications.
Ratio Decidendi
The court found that granting an order for impounding and placing the motor vehicle in police custody would amount to setting aside its earlier ex parte order staying the impounding of the same vehicle. To avoid conflicting orders and in the interest of justice, the court declined to grant the interim order for impounding but instead ordered that the petitioner shall not sell or dispose of the motor vehicle pending the hearing and determination of the applications. The court also certified the matter as urgent and directed service for inter partes hearing.
Court Disposition
Interim orders for impounding refused; preservation order granted; matter certified urgent.
Orders
- Leave granted to the applicant to be heard during the recess.
- Application certified as urgent; applicant to serve respondent's counsel forthwith for inter partes hearing on 9/4/2021.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
ELECTION PETITION NO. E001 OF 2021
ORIGINATING FROM
KAKAMEGA HIGH COURT ELECTION PETITION NO. 14 OF 2017
SETH AMBUSINI PANYAKO............................................................PETITIONER/APPLICANT
VERSUS
THE INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION.................................................1ST DEFENDANT/RESPONDENT
THE RETURNING OFFICER KAKAMEGA COUNTY.......2ND DEFENDANT/RESPONDENT
CLEOPHAS WAKHUNGU MALALAH..................................3RD DEFENDANT/RESPONDENT
RULING NO.2
1. I have considered the application under Certificate of Urgency dated 29th March, 2021 to be heard during the recess. I grant leave to the applicant to be heard during the recess.
2. On the prayer for orders directing the Respondent to surrender his motor vehicle registration No. KCQ 490U into the custody of OCS Kakamega Police Station pending hearing and determination of the Petitioner’s application dated 24/3/2021, I find the application to be urgent. I certify it as urgent and direct the applicant to serve the Respondent’s counsel forthwith for interpartes consideration on 9/4/2021,together with Petitioner’s application dated 24/3/2021.
3. On whether I should grant interim orders, having granted stay of impounding of the subject motor vehicle KCQ 490U by Jakacha Auctioneers on 26/3/2021, to grant another order for impounding and placing it in the custody of the police would amount to setting aside the orders of this court made exparte on 26/3/2021.
4. For the above reason, I decline to make the orders sought in the interim as framed. I however, order that in the interest of justice, the Petitioner shall not sell or dispose of motor vehicle registration No. KCQ 490U pending hearing and determination of his own application dated 24/3/2021 and the application herein dated 29/3/2021 interpartes.
5. this ruling to be typed and certified and send to the Deputy Registrar, Kakamega High Court forthwith.
6. this file is closed.
7. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA, THIS 30TH DAY OF MARCH 2021
R.E. ABURILI
JUDGE