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Court of AppealPartially AllowedCivil Appeal 10 of 2007· [2008] KECA 341 (KLR)

Oilcom Kenya Limited v The Permanent Secretary, Ministry of Roads & Public Works and The Attorney General

Court of Appeal
31 July 2008
Philip Kiptoo TunoiP. K. TunoiJOJ. W. Onyango OtienoDAD. K. S. Aganyanya
2,315 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that judicial review leave applications must be heard ex-parte, and granted Oilcom a stay protecting its Mlolongo petrol station from demolition.

What this practically means

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Executive summary

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Oilcom Kenya Limited appealed against a High Court ruling (Wendoh, J., 29 November 2006) in H.C.C. Misc. Appl. No. 701 of 2006, in which leave was granted to apply for certiorari and prohibition to quash and restrain the respondents' threatened demolition of its petrol station on L.R. No. 17645/2 at Mlolongo, but an order of stay was refused. The appellant advanced eight grounds, principally that the Judge wrongly converted an ex-parte leave application into an inter-partes hearing, took into account irrelevant public-interest considerations, and misdirected herself in relying on the availability of damages in declining a stay. The respondents maintained that the plot formed part of L.R. No. 1504/7, compulsorily acquired in 1972 for road and weighbridge expansion, that the appellant's title was irregularly obtained, and that no compensation was due. The Court of Appeal (Tunoi, Onyango Otieno and Aganyanya, JJA) held, first, that under Order LIII rule 1(2) a leave application must proceed ex-parte and the Judge had no discretion to hear it inter-partes, the inter-partes stage belonging to the substantive motion under rule 3(1); and secondly, that a stay is not automatic upon leave but requires a specific direction. Having found the appellant had an arguable case as registered proprietor, with substantial developments on the land and unresolved uncertainty whether the plot fell within the acquired parcel, the court held a stay should have been granted. The appeal was allowed, the stay granted pursuant to prayer 3, the main motion directed to proceed on priority basis, and each party ordered to bear its own costs.

Key legal issues

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01

Ex-parte nature of judicial review leave applications

Holding

The Judge exceeded her discretion by directing inter-partes hearing of the leave application; the inter-partes stage arises only under the main Notice of Motion.

Reasoning

Order LIII rule 1(2) prescribes that leave applications be made ex-parte to a Judge in chambers. The inter-partes stage belongs to the substantive motion under rule 3(1). The court cited Republic v Commissioner of Co-operatives ex-parte Kirinyaga Tea Growers in support. However, the court did not allow the appeal on this ground alone.

p. 4
02

Whether stay should accompany leave where an arguable case is shown

Holding

Having found an arguable case, the Judge should have granted the stay along with leave; the Court of Appeal granted the stay itself.

Reasoning

The Judge found the appellant had title and an arguable case, and uncertainty existed whether the plot fell within the compulsorily acquired land. Given the substantial developments and the unresolved boundary question, the court held this was an appropriate case for a stay and granted it pursuant to prayer 3.

p. 4

Legal principles established

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  • An application for leave to apply for judicial review must proceed ex-parte; the Judge has no discretion to hear it inter-partes.
  • An order of stay is not automatic upon a grant of leave for judicial review; the Judge must give a specific direction.

Court orders

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  1. 1.Appeal allowed
  2. 2.Stay granted pursuant to prayer 3 of the application in the superior court
  3. 3.Main application by Notice of Motion to proceed to hearing on a priority basis
  4. 4.Each party to bear its/his own costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder LIII rule 1(2)
  • Civil Procedure RulesOrder LIII rule 1(3)
  • Civil Procedure RulesOrder LIII rule 3(1)
  • Law Reform ActChapter 26 Laws of Kenya
  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 42

Cases cited (1)

  • Republic v. Commissioner of Co-operatives ex-parte Kirinyaga Tea Growers
    [1999] I EA 245

    That the inter-partes stage of judicial review comes under the main Notice of Motion, not the leave application

On appeal from
High Court of Kenya at Nairobi
H.C.C. Misc. Appl. No. 701 of 2006
Jurisdiction invoked
Appellate jurisdiction over a High Court ruling in judicial review leave proceedings; appeal under the Court of Appeal Rules (the judgment does not cite a specific constitutional provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Oilcom Kenya Limited v The Permanent Secretary, Ministry of Roads & Public Works and The Attorney General", Case Analysis (2008). Civil Appeal 10 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/341/eng@2008-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.