Justice B.V.P Mahoney of Court of Appeal, who is authorized by the Chief Justice via a fiat to hear and determine this case, has on Tuesday ordered the newly established KMC commission of inquiry to suspend proceedings until the court hears from the Attorney General and local government minister in respect of the order to stay proceedings.
The KMC had filed an ex-parte earlier this week seeking, among other things, an order suspending the establishment of the commission of inquiry, arguing it was not done in accordance with the applicable law.
The Council also sought an order for all proceedings of the commission be stayed pending the determination of the matter.
The Order, seen by The Standard, reads in part:
“The summons is supported by a statement containing grounds upon which the said relief is sought to the effect:
o that the 1 st Respondent’s decision to institute the Commission is wrong in law in that the mandatory preconditions set out in Section 151 (2) of the Local Government Act have not been met;
o that the decision is ultra vires, illegal and in excess of the powers of the Minister;
o that the decision of the Minister is unreasonable, illegal and an abuse of power in that part of the subject matter of the Commission is pending before another suit at the High Court;
o that the decision of the Minister is unreasonable and contrary to natural justice as the subject matters of the Commission were subject of an Inspection and Report which have not been shared with the Applicant;
o that the Minister acted in abuse of power, in bad faith and contrary to the requirements of Sections 148, 149, 150 and 151 of the Local Government Act; that the said decision is ultra vires, illegal and in excess of the powers of the Minister under Section 151 (2) of the Local Government Act as the Minister does not have the power to institute a commission of inquiry in the circumstances; and that the decision is ultra vires, illegal and in excess of the powers of the Minister as the Commission envisaged in Section 151 (2) (a) of the Local Government Act is an administrative investigatory commission and not a commission of inquiry pursuant to Section 2 of the Commission of Inquiry Act and Section 200 of the Constitution which he sought to establish.
The summons is also supported by an affidavit sworn to by Ousman Gaye, the Clerk of the Applicant and attached thereto are 7 documents mainly correspondence between the Applicant and the 1 st Respondent including Applicant Council’s resolutions, Government Gazette and writ of summons in another case.”
Justice Mahoney said the court has jurisdiction to entertain.
“I am further satisfied that the applicant has complied with the procedure set out in Order 53 of the Rules of the High Court in England and that the Applicant has established more than the minimum requirement for the grant of leave to apply for an order of certiorari against the Respondents.”
“Since the Commission instituted by the I st Respondent has already been established by Gazette dated 3 1 st December 2021, it would be an exercise in futility to suspend the establishment of the Commission. However, considering the circumstances in this application brought by the Applicant particularly the challenge to the legality of the institution and establishment of the Commission and the allegations of procedural impropriety and infringement of the rules of natural justice, I believe it would be in the interest of justice that the proceedings of the Commission be stayed pending further order of this Court upon the Respondents being given an opportunity to be heard on the issue.”
The parties will argue the application on notice for stay on Monday 24d1 January 2022 at 2pm. The ruling on the application on notice for stay to be delivered on Tuesday 25th January 2022.