[2008] KEHC 1146 (KLR)
The court found that the applicant had demonstrated a prima facie arguable case and sufficient interest in the subject matter, warranting the grant of leave to apply for judicial review (certiorari) against the decision contained in Gazette Notice No. 7070 of 5th August 2008. However, the court declined to grant...
Source-derived case information.
- Citation
- [2008] KEHC 1146 (KLR)
- Parties
- Applicant: William Kiplimo Komen; Respondent: Hon. Musalia Mudavadi, Minister for Local Government
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 602 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons for Leave to Apply for Judicial Review and Stay
- Outcome
- Leave granted to apply for judicial review (certiorari); stay orders declined; application certified urgent; costs to follow main motion.
- Legal Topics
- Judicial Review, Certiorari, Public Office Removal, Gazette Notice Revocation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Kiplimo Komen
Applicant
Hon. Musalia Mudavadi, Minister for Local Government
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons for Leave to Apply for Judicial Review and Stay
Legal Issues
- 1 Whether the applicant has demonstrated a prima facie arguable case for leave to apply for judicial review (certiorari).
- 2 Whether the applicant is entitled to interim stay of the implementation of the Gazette Notice revoking his nomination as councilor.
- 3 Whether the Clerk to Council should be joined and served as a party to the proceedings.
Ratio Decidendi
The court found that the applicant had demonstrated a prima facie arguable case and sufficient interest in the subject matter, warranting the grant of leave to apply for judicial review (certiorari) against the decision contained in Gazette Notice No. 7070 of 5th August 2008. However, the court declined to grant interim stay orders, holding that the applicant had not shown he would suffer substantial loss at this preliminary stage. The court also noted that the Clerk to Council, a key official in the implementation of the impugned decision, had not been joined as a party and ordered that the main motion be served on the Clerk. The leave granted would lapse if the main motion was not filed...
Court Disposition
Leave granted to apply for judicial review (certiorari); stay orders declined; application certified urgent; costs to follow main motion.
Orders
- The application is certified as urgent.
- Leave is granted to the applicant to file judicial review proceedings for certiorari as prayed. The main motion must be filed and served on the Clerk to Council within 21 days, failing which the leave will lapse.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Misc Appli. JR 602 of 2008
WILLIAM KIPLIMO KOMEN…….…...…………………. EX-PARTE APPLICANT
-V E R S U S-
THE HONOURABLE MUSALIA MUDAVADI
THE MINISTER FOR LOCAL GOVERNMENT…….……….. RESPONDENT
R U L I N G
This is a Chamber Summons dated 3rd October, 2008 filed by M/s Arusei & Company advocates on behalf of the ex-parte applicant WILLIAM KIPLIMO KOMEN. The respondent is named as HON. MUSALIA MUDAVADI THE MINISTER FOR LOCAL GOVERNMENT. The orders sought in the application are that-
1. This application be certified urgent and be placed before duty judge for hearing anddetermination forthwith.
2. Leave be granted to the applicant to apply for an order of certiorari to this court for the purpose of being quashed the decision of the Minister for Local Government contained in legal Gazette Notice No. 7070 of 5th August, 2005 revoking the nomination of the applicant herein as a councilor to the County Council of Baringo.
3. The leave granted herein do operate as a stay of the implementation of the decision contained in the Kenya Gazette Notice No. 7070 of 5th August, 2008 in regard to the applicant herein.
4. The costs of this application be provided for.
Grounds of the application are on the face of the Chamber Summons application. The application was filed with a STATEMENTand aVERIFYING AFFIDAVIT.
When the application came up for hearing, the counsel for the applicant, Mr. Arusei, submitted that his client had been gazetted as a nominated councilor in February, 2008. However, on 5th August, 2008, the Gazette Notice highlighted in this application, denominated one WILLIAM KIPRUTO KOMENas a councilor. This name was different from the name of the applicant. However, the Clerk of the County Council of Baringo had interpreted the degazettement to mean that the applicant was the person who was denominated. Counsel submitted that it was because of the above complaints that this application for leave was brought. Counsel contended also that the applicant would suffer prejudice, if stay orders were not granted.
I have considered the application, documents filed as well as the submissions of counsel for the applicant. In my view, the applicant has demonstrated a prima facie arguable case. He has also demonstrated a sufficient interest in the subject matter. I will grant the leave sought.
The applicant has asked me to grant stay orders. I find no basis for granting stay orders at this preliminary stage. I am not convinced that the applicant has demonstrated that he will suffer substantial loss. In addition, one of the officials complained of, that is the Clerk to Council, has not yet been joined as a party in the application herein. In granting leave, I will order that the Clerk to Council be served with the main motion.
Consequently, I order as follows-
1. I certify the application as urgent.
2. Leave be and is hereby granted to the applicant to file Judicial Review proceedings for certiorari as prayed. The main motion will be filed within 21 days, from today and also served on the Clerk to Council of the local authority in default the leave herein will automatically lapse.
3. I decline to grant stay orders.
4. Costs will follow the decision in the main motion
Dated and delivered at Nairobi this 22nd day of October, 2008.
George Dulu
Judge.
In the presence of-
Mr. Arusei for applicant