[2012] KEHC 5728 (KLR)
The court found that while the petitioner may have an argument regarding the High Court vacation, her rights are not threatened because the High Court (Practice and Procedure) Rules entitle her and other litigants to move the court to be heard during vacation for urgent matters. Arrangements exist to ensure courts...
Source-derived case information.
- Citation
- [2012] KEHC 5728 (KLR)
- Parties
- Applicant: Zahura Juma Kabuto; Respondent: The Chief Justice (sued through the Registrar of the High Court); Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 320 of 2012
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Conservatory Orders
- Outcome
- application dismissed
- Legal Topics
- Access to Justice, Court Vacation, Conservatory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zahura Juma Kabuto
Applicant
The Chief Justice (sued through the Registrar of the High Court)
Respondent
The Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Conservatory Orders
Legal Issues
- 1 Whether the High Court vacation infringes on the constitutional right of access to justice.
- 2 Whether the petitioner is entitled to a conservatory order prohibiting the 1st respondent from directing court officers to proceed on vacation.
Ratio Decidendi
The court found that while the petitioner may have an argument regarding the High Court vacation, her rights are not threatened because the High Court (Practice and Procedure) Rules entitle her and other litigants to move the court to be heard during vacation for urgent matters. Arrangements exist to ensure courts are available to deal with such cases. Therefore, there is no infringement of the right of access to justice, and the application for conservatory orders lacks merit.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT NAIROBI
MILIMANI LAW COURTS
Petition 320 of 2012
ZAHURA JUMA KABUTO ......................................................................................PETITIONER
AND
THE CHIEF JUSTICE(sued through the Registrar of the High Court).....................1ST RESPONDENT
THE ATTORNEY GENERAL.........................................................................2ND RESPONDENT
RULING
The application before the Court seeking the following orders namely that pending the hearing and determination of the petition, the court be pleased to issue a conservatory order of prohibition restraining the 1st respondent from directing officers of the High Court including judges of the High Court of Kenya to proceed on summer vacation or any other vacation as provided in the Judicature Act (Cap 8 of the Laws of Kenya).
The petition is founded primarily on the ground that the court vacation limits the right of every citizen to approach a court of law at any time when a dispute arises.
According to the petitioner she has been involved in Embu HCCC 116 of 2012which is a land dispute. She is 90 years old and wishes to prosecute her case during the vacation.
The application is opposed by the State on the basis that the Judicature Act and the High Court Practice and Procedure Rules entitle the petitioner to move the court during the vacation in the event the matter is one of urgency. Furthermore, counsel avers that this application has been brought late in the day and the petitioner is undeserving of discretion in her favour.
In an application such as this the court is required to consider whether there is a prima facie case with a probability of success. In my view, the petitioner may have an argument to make about the High Court vacation but her rights are not threatened in any manner.
The High Court (Practice and Procedure) Rulesentitle her and other Kenyans to move the court to be heard during the vacation. Furthermore, arrangements are in place to ensure that courts are sitting to deal with cases during vacation.
The application is dismissed with no order as to costs.
DATEDand DELIVERED at NAIROBI this 30th day of July 2012
D.S. MAJANJA
JUDGE
Mr M. Kivuti instructed by Gachie Mwanza and Company Advocates for the petitioner.
Mr L. Muiruri, Senior Litigation Counsel, instructed by the State Law Office for the respondents.