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ELCDismissedMiscellaneous Application No. 80 of 2019 & Miscellaneous Application No. 40 of 2019 (with Misc. Application No. 30 of 2019 referenced)· [2019] KEELC 50 (KLR)

Republic v Principal Magistrate’s Court at Eldoret; Philemon Kemboi Kitum & 2 others (Interested Parties) Ex parte Kenya Forest Service [2019] KEELC 50 (KLR)

High Court of Kenya (Judicial Review)
27 November 2019
MOM. A. Odeny
1,508 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Eldoret refused to cancel judicial review stay orders, ruling such orders should only be lifted sparingly and preferably after a full hearing.

What this practically means

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Executive summary

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This ruling of the High Court at Eldoret (M. A. Odeny, J) dealt with two applications dated 2nd October 2019 and 9th October 2019 by applicants (interested parties in a judicial review matter) seeking to set aside or vary stay orders granted on 9th October 2019, and for leave to transport charcoal already harvested from private farms. The applicants argued that they had obtained subordinate court orders in Misc. Application Nos. 30, 80 and 40 of 2019 permitting them to purchase and transport charcoal, that they held certificates of origin, and that the ex parte applicant's leave granted in the judicial review motion - operating as a stay - was obtained without giving them a hearing, contrary to Article 50. The respondent opposed, arguing the application was an attempt to overturn the stay through a backdoor process. The ex parte applicant contended the jurisdiction was limited, that no licence under Regulation 9 of the Forest (Charcoal) Rules 2009 had been produced, and that the applicants had come to court with unclean hands. The court framed two issues: its jurisdiction to grant the orders and whether the applicants deserved the exercise of judicial discretion. Applying Court of Appeal authority (East Africa Televisions Network Ltd; Nakumatt; Aga Khan Education Service Kenya), it confirmed that leave granted ex parte can be set aside only sparingly and in clear-cut cases. It declined to reverse the decision of Ombwayo J at the interlocutory stage, holding that the parties should expedite the hearing of the judicial review so the matter could be determined on its merits. The applications were dismissed with costs to the ex parte applicant.

Key legal issues

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01

Jurisdiction to set aside ex parte leave/stay in judicial review

Holding

The court has jurisdiction to set aside leave and/or stay granted ex parte in judicial review proceedings, but exercises it sparingly and judiciously.

Reasoning

Relying on the Court of Appeal in R v Communications Commission of Kenya ex parte East Africa Televisions Network Ltd and in Nakumatt Holdings Ltd v Commissioner of VAT, the court confirmed that the proper avenue for an aggrieved party is an application to the judge who granted leave, which jurisdiction is limited and exercised only in clear-cut cases.

p. 2
02

Whether the applicants deserved an exercise of discretion in their favour

Holding

The discretion was not exercised in the applicants' favour; their submissions went to the root of the substantive judicial review motion and were best addressed at the hearing of that motion.

Reasoning

The court held it was not appropriate to reverse the decision of Ombwayo J at the interlocutory stage. Expedited hearing of the judicial review would allow the matter to be determined on its merits, and questions such as lack of licence under the Forest (Charcoal) Rules 2009 could not be resolved at this stage.

p. 3

Legal principles established

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  • The High Court has jurisdiction to set aside leave and/or stay granted in judicial review proceedings, but the jurisdiction is limited and must be exercised sparingly and on very clear-cut cases.
  • Leave in judicial review should be granted where, without going into depth, the court considers there is an arguable case, and an aggrieved party should apply to the judge who granted leave to set it aside.
  • Difficulty in proving the substantive case is not a basis for setting aside leave already granted.

Court orders

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  1. 1.The applications dated 2nd October 2019 and 9th October 2019 are dismissed
  2. 2.Costs of the applications awarded to the Ex parte applicant

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Forest (Charcoal) RulesRegulation 9
  • Forest Conservation and Management ActSection 70

Cases cited (3)

  • R vs. Communications Commission of Kenya & 2 Others ex Parte East Africa Televisions Network Ltd
    Civil Appeal No. 175 of 2000 [2001] KLR 82; [2001] 1 EA 199
  • Nakumatt Holdings Limited vs. Commissioner of Value Added Tax
    [2011] eKLR
  • Aga Khan Education Service Kenya vs. Republic & Others
    Civil Appeal Number 257 of 2003
Jurisdiction invoked
Inherent jurisdiction of the High Court to set aside leave and/or stay granted in judicial review proceedings

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Principal Magistrate’s Court at Eldoret; Philemon Kemboi Kitum & 2 others (Interested Parties) Ex parte Kenya Forest Service [2019] KEELC 50 (KLR)", Case Analysis (2019). Miscellaneous Application No. 80 of 2019 & Miscellaneous Application No. 40 of 2019 (with Misc. Application No. 30 of 2019 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/50/eng@2019-11-27

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