REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA
MISC. CIVIL NO. 77 OF 2010.
MADANYANG TULIAKONG ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT.
THE CHAIRMAN )
PROVINCIAL R. VALLEY PROVINCE )
THE CHIEF MAGISTRATE’S COURT, KITALE) :::::::::::::::::::::::::::::::::::::::::: RESPONDENT.
JOHNSTONE A. LOKAMAR )
This is the application dated the 23rd of December 2010 it seks for the ollowing orders THAT;
1. The court be pleased to grant leave to the ex-parte applicant to file proceedings for Judicial Review for Orders of certiorari to remove into this court for the purposes of quashing forthwith the decision of the Provincial Land Disputes Appeals Tribunal read on 13/4/2009 and the subsequent judgment entered in Kitale CMC Land Case No. 76 of 2007 on 28/6/2010.
2. The court be pleased to grant leave to the ex-parte applicant to file proceedings for Orders of Prohibition to prohibit the Chief Magistrate’s Court from executing the decree entered in terms of the award filed.
3. Leave granted to operate as stay of any further proceedings in Kitale CMCC Land Case No. 76 of 2007 pending the hearing and determination of the main motion.
It was ordered that the application be heard interpartes so that parties would have argued in accordance with the provisions of order 53 rule 4 as to whether any leave granted ought to apply as a stay o execution.
The applicant has averred in his affidavit that the other party has taken out a notice to show cause and that there is eminent danger that he may be evicted. That yet his appeal to the Land Disputed Appeal Tribunal was dismissed without him putting an input contrary to the rules of natural justice.
Is the applicant entitled to the orders sought?
Order 53 rule 4 is to the effect that leave can operate as a stay if the court so directs. It has a proviso to the effect that
‘provided that where the circumstances so require, the judge may direct that the application be served for hearing interpartes before grant of leave. Provided further where the circumstances so require may direct the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within 7 days’
The reading of this is that neither leave nor leave operating as a stay is no longer automatic and the courts are given the discretion to make a finding . this provision has cured the mischief that was found in the previous civil provisions Rules where whenever a leave was granted, it acted as an ad infinitum stay.
Order 53 rule 4 is to the effect that leave can operate as a stay if the court so directs. It has a proviso to the effect that
‘provided that where the circumstances so require, the judge may direct that the application be served for hearing interpartes before grant of leave. Provided further where the circumstances so require may direct the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within 7 days’
Is the application for leave merited? Ought it to be allowed to act as a stay of proceedings?
It will be improper at this point to go into issues as to whether this is a matter merited for judicial review till all the issues are argued out.
The issue before the court at this point is whether the leave granted ought to act as a stay of execution.
So that at the end of the day the matter is heard and determined on the basis of its own merit and the fact that the application not being so frivolous as to merit summary dealing of the same on the part of the court, the court makes the following finding:
· That the leave will apply as a stay
· Given the fact that the issues raised are not complex and also given the fact that rules including order 53 of the civil procedure under the overriding principle as outlined in section1A of the Civil Procedure Act are meant to facilitate the just and expeditious resolution of suits,
this court invoking section3A of the CPA orders that the main motion be set down for hearing within the next 120 days.
READ, DATED & SIGNED IN THE OPEN COURT THIS 28TH DAY OF OCTOBER 2011
S.M. MUKETI
JUDGE
