REPUBLIC V DISTRICT COMMISSIONER NJIRU & ANOTHER EX-PARTE MAURICEODUOR & 2 OTHERS [2011] KEHC 72 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS APPLICATION 72 OF 2011

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IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDER OF PROBIBITION

AND

IN THE MATTER OF CONSTITION OF KENYA ,THE TREATIES AND CONVENTION LAWS, LAW REFORM ACT AND CIVIL PROCEDURE RULES

IN THE MATTER OF EVICTION BY THE IDSTRICT COMMISSIONER NJIRU

IN THE MATTER OF LAND PARCEL L.R. NO. 5908/8 NAIROBI

IN THE MATTER OF APPLICATION BY NARIDAI MUOROTO SQUATTERS SELF HELP GROUP

BETWEEN

MAURICE ODUOR…………………………….………………….…….………………….1ST APPLICANT

JOHN MAINA ………………………………………………………..……………………..2ND APPLICANT

HABAT B MUGANGAI………………………………….……………….…………………3RD APPLICANT

(Suing for and on behalf of NARIDAI MUOROTOSQUATTERS SELF HELP GROUPEXPARTE

VERSUS

DISTRICT COMMISSIONER NJIRU………………......………………...……………1ST RESPONDENT

HON. ATTORNEY GENERAL………………………....…………..……..……………2ND RESPONDENT

AND

MARIA KIRIMA …………………………..……………………….…………….……INTERESTED PARTY

TERESIA KIRIMA …………………….....………………………………..…………..INTERESTED PARTY

STEVE KIRIMA …………………………...…………………………………………..INTERESTED PARTY

WANJAU KIRIMA ……………...…………………………………………………….INTERESTED PARTY

JOHN KAMAU KIRIMA …….....………………………………………….………….INTERESTED PARTY

RULING

The ex-parte applicants were on 22nd August, 2011 granted leave by Wanjiru, J to bring judicial review proceedings. The Judge directed at that time that the prayer for leave to operate as stay be served for inter-partes hearing. This particular prayer came up for argument before me on 15th November, 2011.

I have carefully considered the submissions made by each side and find that if I commit my thoughts on those argument in writing, I will end up prejudicing the substantive application which the applicants intend to file. I only want to address one issue namely that the applicants have failed to file the substantive notice of motion within 21 days from the date of granting leave. Looking at the court proceedings of 22nd August, 2011, I get the impression that the applicants were to await the outcome of the application for stay before taking any further action. It is my view therefore that the 21 days will start running from the date of the delivery of this ruling. I have made my stand on this issue at this stage so that it may not crop up in future.

After carefully considering the submissions made by the advocates for the applicants and interested parties, I find that this is not a proper case for allowing the leave granted to operate as stay. As such I decline to grant prayer No.3 of the applicants’ chamber summons dated 17th August, 2011. The costs of this application will await the outcome of the substantive notice of motion. The applicants are directed to file and serve the substantive notice of motion within 15 days from the date of this ruling. Thereafter the respondents and third parties shall have 15 days from the date of service within which to file their responses. This matter will be mentioned on 30th January, 2012 for further directions.

Dated, signed and delivered at Nairobi this 1st day of December, 2011.

W. K. KORIR

JUDGE