Badar Ahmed v Clerk to the County Assembly Wajir & Wajir County Assembly [2017] KEHC 3169 (KLR)

REPUBLIC OF KENYA

HIGH COURT OF KENYA AT MERU

JUDICIAL REVIEW DIVISION

MISCELLANEOUS APPLICATION NO. 8 OF 2017

In the matter of an Application by BADAH AHMED

(For leave to apply for Orders of Certiorari, Prohibition and Mandamus

AND

In the matter of sections 8 and 9 of the Law Reform Act (Cap 26) Laws of Kenya

BADAR AHMED …................................................... APPLICANT

Versus

CLERK TO THE COUNTY ASSEMBLY WAJIR......1ST RESPONDENT

WAJIR COUNTY ASSEMBLY..................................2ND RESPONDENT

R U L I N G

1. Before me is a Chamber Summons dated 5th September, 2017 brought under Order 53 Rule 1 of the Civil Procedure Rules 2010.  The same seeks orders for leave to be granted to the Applicant to apply for orders of Prohibition, Mandamus and Certiorari.  The summons further seek that the leave so granted do operate as a stay pending the hearing and determination of the substantive Notice of Motion.

2. Before delving into the application, Mr. Kaimba learned Counsel for the Applicant explained that although the matter emanated from Wajir, Garissa High Court was not sitting during the vacation; that the matters from Wajir are therefore supposed to be handled either in Nairobi or Meru High Courts.   I therefore allowed Mr. Kaimba to argue the application in view of the urgency.

3. The grounds upon which the summons was brought were that the election of Speaker for the County Assembly of Wajir was advertised on 1st September 2017 on a Friday which was a Muslim holiday of Idd-ul-Adha, that the application forms for the said position were supposed to be returned at 9. 00am the following Monday 4Th September, 2017.  That the time given was unreasonable in the circumstances and was meant to lock out the applicant from the contest.

4. The court has considered the affidavit in support of the summons, the Statutory statements and the verifying Affidavit.  The only claim raised is that the 1st Respondent has acted unreasonably in the circumstances and is in acted in breach of the rules of natural justice.  Those are grounds sufficient for one to apply for judicial orders of Certiorari, Prohibition and Mandamus.   Accordingly, the leave sought is merited and is hereby granted.

5. As regards the prayer for leave to act as stay, the same was not well pleaded and argued.  The prayer read as follows;

“5.  That leave to apply for Orders of Prohibition, Mandamus and Certiorari do operate as a stay pending the hearing and determination of the substantive Notice of Motion application to be filed”.

6. That prayer did not indicate what is to be stayed or put differently what the leave was to act as stay  of what action.  Further, it was not shown what irreversible damage that is to be suffered if the stay order was not made.  Accordingly, the prayer for stay is declined.

7. In this regard, the summons is allowed in terms of prayer numbers 2,3, and 4 only.  The substantive Notice of Motion is to be filed within 21 days of today.

It is so ordered.

DATED, and DELIVERED in court at Meru this 6th  day of September 2017.

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A. MABEYA

JUDGE