AI-generated case brief

Case Brief · caselaw.co.ke

ELCPartially AllowedPetition (Constitutional Petition), Nakuru — Notice of Motion dated 29th August 2018· [2018] KEELC 1982 (KLR)

Justice and Environment Foundation & 6 others v Perry Patel Mansukhlal Kansagra & 8 others [2018] KEELC 1982 (KLR)

High Court of Kenya

31 August 2018

DOD. O. Ohungo

1,615 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~6 min to read original · ~4 min brief

The bottom line

The High Court in Nakuru refused to directly allow foreign travel for a man facing criminal charges, instead telling him to seek permission from the trial court handling his case.

What this practically means

Executive summary

This is a ruling by Ohungo J of the High Court at Nakuru, delivered on 31st August 2018 as recess duty judge, on the 1st respondent's Notice of Motion dated 29th August 2018 in a constitutional petition. The applicant, Perry Mansukh Kansagra, sought variation of an order made on 9th August 2018 by the duty judge (Ombwayo J) restraining him from travelling out of the country, so as to visit his child in India between 13th and 18th September 2018 pursuant to orders of the High Court of New Delhi. The application was brought under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The petitioners opposed, contending the application was defective for being brought under the Civil Procedure Act rather than rules made under Article 22(3) of the Constitution, that the Order 45 review criteria were unmet, and that the applicant had used contemptuous language and approached the court with unclean hands; they also sought a deposit of KShs 5 billion as a pre-condition. The court held that Article 159(2)(d) and Article 22(3)(b) disfavour procedural technicalities and found the application properly before it. Noting that the applicant was an accused in Naivasha CM Criminal Case No. 977 of 2018 with bond conditions restricting travel, the court declined to make a specific travel order, observing that the trial court was better placed to decide. It instead stayed the orders of 9th August 2018 pending hearing of the two pending applications, gave the applicant liberty to apply to the Naivasha court, and made no order as to costs (costs in the cause).

Key legal issues

Whether the application was defective for being brought under the Civil Procedure Act and Order 45 of the Civil Procedure Rules rather than rules made under Article 22(3) of the Constitution

Holding

The application was validly before the court; procedural technicalities are disfavoured and formalities in Bill of Rights enforcement must be kept to a minimum.

Reasoning

The petitioners argued the wrong legal basis rendered the application unsustainable. The court invoked Article 159(2)(d), which frowns upon procedural technicalities, and Article 22(3)(b), which requires that formalities be kept to a minimum in rules facilitating enforcement of the Bill of Rights. On that basis it found the application properly before it and proceeded to consider it on the merits.

p. 2

Whether the order of 9th August 2018 restraining the 1st respondent from travelling should be varied to permit travel to India

Holding

The court stayed the 9th August 2018 orders rather than varying them, leaving the Naivasha trial court free to determine the travel application.

Reasoning

The 1st respondent is an accused person in Naivasha CM Criminal Case No. 977 of 2018 with bond conditions depositing his passport and restricting travel without the subordinate court's permission. Making a specific travel order would tie the hands of that court. The better course was to stay the High Court's interim orders pending the hearing of the two pending applications, and allow the applicant to seek leave from the trial court.

p. 3

Legal principles established

Procedural technicalities should not bar consideration of an application in a Bill of Rights petition; formalities are to be kept to a minimum under Article 22(3)(b).
Where an applicant's movement is already regulated by bond conditions in a pending criminal case, the constitutional court may stay its interim travel restrictions rather than make competing orders, leaving the trial court free to decide.

Court orders

1.The orders made by this court on 9th August 2018 are stayed pending hearing and determination of Notice of Motion dated 8th August 2018 and Notice of Motion dated 27th August 2018
2.The 1st respondent is at liberty to make an appropriate application before the trial court in Naivasha CM Criminal Case Number 977 of 2018 Republic vs. Perry Mansukh Kansagra & 9 Others for leave to travel out of the jurisdiction of the said court
3.Costs in the cause

Authorities

Legislation

Civil Procedure ActSections 1A, 1B, 3A, 63(e)
Civil Procedure RulesOrder 45
Constitution of Kenya, 2010Articles 22(3)(b), 159, 159(2)(d)

Cases cited (1)

Shah v. Mbogo & Another
[1967] E.A. 116

Jurisdiction invoked: Constitution of Kenya 2010, Article 22 and 159 (enforcement of Bill of Rights); Civil Procedure Act Sections 1A, 1B, 3A, 63(e) and Order 45 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Justice and Environment Foundation & 6 others v Perry Patel Mansukhlal Kansagra & 8 others [2018] KEELC 1982 (KLR)", Case Analysis (2018). Petition (Constitutional Petition), Nakuru — Notice of Motion dated 29th August 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1982/eng@2018-08-31

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