Case ID:168151

Republic v Betting Control and Licensing Board; Safaricom Limited & 3 others (Interested Parties) Ex Parte Milestone Games Limited [2020] eKLR

Case Metadata

Case Number:

Judicial Review Miscellanous Application E061 of 2020

Parties:

Republic v Betting Control and Licensing Board; Safaricom Limited, Artel Networks Kenya Limited, Communications Authority of Kenya & Pevans East Africa Limited (Interested Parties) Ex Parte Milestone Games Limited

Date Delivered:

03 Dec 2020

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Pauline Nyamweya

Citation:

Republic v Betting Control and Licensing Board; Safaricom Limited & 3 others (Interested Parties) Ex Parte Milestone Games Limited [2020] eKLR

Court Division:

Judicial Review

County:

Nairobi

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW MISCELLANOUS APPLICATION NO. E061 OF 2020

BETWEEN

REPUBLIC.........................................................................................APPLICANT

VERSUS

BETTING CONTROL AND LICENSING BOARD

................1

ST

RESPONDENT

AND

SAFARICOM LIMITED

................................................1

ST

INTERESTED PARTY

ARTEL NETWORKS KENYA LIMITED.......................

2

ND

INTERESTED PARTY

COMMUNICATIONS AUTHORITY

OF KENYA

.......3

RD

INTERESTED PARTY

PEVANS EAST AFRICA LIMITED

.............................4

TH

INTERESTED PARTY

EX PARTE:

MILESTONE GAMES LIMITED

RULING NO 2

The Application

1. On 16

th

November 2020, this Court delivered a ruling in which it made the following orders among others, on an application made by Milestones Games Limited, the

ex parte

Applicant herein:

a. T

he ex parte Applicants’ Chamber Summons application dated 9

th

November 2020 be and is hereby certified as urgent, and is hereby admitted for hearing ex parte and on a priority basis.

b. The

ex parte Applicant is

granted leave to

apply for an order of Certiorari

to move into this Court for purposes of being quashed, a decision of the Respondent to prohibit the Applicant from using the name 'Sportpesa', domain

www.ke.sportpesa.com

, www.sportpesa.co.ke, short codes 29050 and 79079, Pay Bill numbers 521521, 9555700 and 955700 communicated in its letter referenced BCLB 11/152 VOL.I (9) addressed to the Ex Parte Applicant and dated 30

th

October 2020.

c. The

ex parte Applicant is

granted leave to

apply for an order of Certiorari

to move into this Court for purposes of being quashed, a decision of the Respondent contained in the letter dated 31

st

October 2020 Ref No. BCLB 11/152 VOL.I (14) indefinitely and unilaterally suspending the lawfully issued license to the Ex Parte Applicant

d. The

ex parte Applicant is

granted leave to

apply for an order of

Prohibition to prohibit the implementation of the decision of the Respondent barring the Applicant from using the name 'Sportpesa', domain www.ke.sportpesa.com, www.sportpesa.co.ke, short codes 29050 and 79079, Pay Bill numbers 521521, 9555700 and 955700 communicated in its letter referenced BCLB 11/152 VOL.I (9), dated 30

th

October 2020.

e. The

ex parte Applicant is

granted leave to

apply for an order of

Prohibition to prohibit the implementation of the decision of the Respondent communicated vide letter dated the 31

5t

October 2020, Ref No. BCLB 11/152 VOL.I (14) indefinitely suspending the Ex Parte Applicant's license.

f. The grant of leave herein shall operate as a stay of execution and implementation by the Respondent and Interested Parties

of the Respondent's decisions communicated in the letters dated the 30

th

October 2020 Ref No. BCLB 11/152 VOL.I (9), and 31

st

October 2020 Ref No. BCLB 11/152 VOL.I (14),

pending the hearing and determination of the substantive judicial review application or until further orders by this Court.

2. Further directions and orders were given in the ruling as regards the filing and service of the

ex parte

Applicant’s substantive Notice of Motion and responses thereto by the Respondent and Interested Parties, and this matter was to come up for

inter partes

hearing on 25

th

January 2021. I note in this respect that the

ex parte

Applicant’s substantive Notice of Motion dated 19

th

November 2020 is on the record, as is a replying affidavit sworn on 24

th

November 2020 by the Chairman of the Respondent Board.

3. The

ex parte

Applicant has now filed a Notice of Motion application dated 2

nd

December 2020, in which it is seeking the following orders:

1. THAT the Application be certified urgent and be heard ex-parte in the first instance for the reasons of urgency set out in the Certificate of Urgency.

2. THAT the Stay Order issued by the e Court on the 16

th

November 2020 do apply to stop the implementation of the Respondent's

letter dated the 24

th

November 2020 Ref No. BCLB 11/152 VOL.I (25) pending the hearing and determination of this matter.

3. THAT the Applicant be granted leave to amend the Notice of Motion dated the 19

th

November 2020 to apply for an order of CERTIORARI to move into this Court for purposes of being quashed the Respondent's letter dated the 24

th

November 2020 Ref No. BCLB 11/152 VOL.I (25).

4. THAT the Stay Order be applied to stop the Respondent and Interested Parties from interfering with the Applicant's business and operations pending the hearing and determination of this matter.

5. THAT the Honourable Court be pleased to grant such other or further relief as it may deem fit in the circumstances.

6. THAT the cost of this Application be provided for

4. The grounds for the application are stated in the

ex parte

Applicant’s supporting affidavit sworn on 2

nd

December 2020 by Bernard Chauro, the

ex parte

Applicant’s Operations Manager. In summary, the main grounds are that the Respondent in disrespect to the

authority of this Court has purported to withdraw and recall the impugned decisions stayed by the Court, and sought to substitute them with another decision contained in a letter dated the 24

th

November 2020 Ref No. BCLB 11/152 VOL.I (25) whose import and effect is to undermine the orders issued by the Court on the 16

th

November 2020. Further, that it is in the interest of justice that this Court deals with the totality of the dispute including the subsequent actions by the Respondents that are aimed at undermining the authority of the Court and illegally frustrate the

ex parte

Applicant's businesses and operations.

5. The

ex parte

Applicant annexed a copy of the impugned decision made by the Respondent in the letter dated the 24

th

November 2020.

The Determination

6. I have considered the application dated 2

nd

December 2020 and the reasons offered in support of the urgency, and I am satisfied that the

ex parte

Applicant has demonstrated that this matter is urgent. This for reason that the Respondent has indicated in its decision of 24

th

November 2020 that it intends to act on the subject matter of the dispute herein as from 3

rd

December 2020, which is today’s date.

7. On the orders of stay sought by the

ex parte

Applicant, this Court in its ruling of 16

th

November 2020 explained that the main purpose of a stay is to suspend proceedings that are challenged by a claim for judicial review, and to preserve the

status quo

pending the final determination of a claim made by an aggrieved party. The

ex parte

Applicant has provided evidence that during the pendency of the stay orders granted herein on 16

th

November 2020, the Respondent has taken further actions on the dispute before this Court by its letter dated 24

th

November 2020. In the circumstances, in order to prevent abuse of the process of Court and in the interests of justice, it is my finding that extension of the stay orders sought is merited and justified.

8. Likewise, in light of the imminent further actions intended by the Respondent on the subject matter of this suit while this matter is pending, and that may have the effect of rendering the

ex parte

Applicant’s claim nugatory, this Court will consider the prayer for amendment of the substantive Notice of Motion

ex parte

.

9. This Court is in this regard guided by the overriding objectives that guides its operations in sections 1A and 1B of the Civil Procedure Act, including the just, expeditious and efficient disposal of disputes, and the provisions of section 3A of the Act on this Court’s

i

nherent powers

to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the court.

10. In addition, the provisions of

Order 53 Rule 4(2) Civil Procedure Rules provides as follows:

“4. (2) The High Court may on the hearing of the motion allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising out of the affidavits of any other party to the application, and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he shall give notice of his intention and of any proposed amendment of his statement

,

and shall supply on demand copies of any such further affidavits.”

11. While a plain reading of the rule indicates that only a statement may be amended, if a relief sought in the statutory statement is amended, then the substantive notice of motion will also require to be amended as well. This Court therefore has power and discretion to allow an amendment of a substantive Notice of Motion in judicial review proceedings in light of the foregoing provisions of the law. In addition, no prejudice will be caused to the Respondent and Interested Parties by an amendment, as they will be accorded an opportunity to respond to any new pleadings filed by the

ex parte

Applicant.

The Orders

12. In light of the foregoing observations and findings, the

ex parte

Applicants’ Notice of Motion application dated 2

nd

December 2020 is found to be merited to the extent of the following orders:

I. T

he

ex parte

Applicants’ Notice of Motion application dated 2

nd

December 2020 be and is hereby certified as urgent, and is hereby admitted for hearing

ex parte

and on a priority basis.

II. The

ex parte

Applicant is

granted leave to

amend the Notice of Motion dated the 19

th

November 2020, to apply for an additional order of CERTIORARI to move into this Court for purposes of being quashed the Respondent's letter dated the 24

th

November 2020 Ref No. BCLB 11/152 VOL.I (25), and shall file and serve the Amended Notice of Motion within seven (7) days of today’s date.

III. The stay orders granted herein on 16

th

November 2020 are hereby varied and extended to the extent that the leave granted herein shall operate as a stay of execution and implementation by the Respondent and Interested Parties

of: (a) the Respondent's decisions communicated in the letters dated the 30

th

October 2020 Ref No. BCLB 11/152 VOL.I (9) and 31

st

October 2020 Ref No. BCLB 11/152 VOL.I (14); and (b) the Respondent’s

letter dated the 24

th

November 2020 Ref No. BCLB 11/152 VOL.I (25). The leave granted herein shall also operate as a stay of any other action by the

Respondent and Interested Parties that will interfere

with the

ex parte

Applicant's business and operations,

pending the hearing and determination of the

ex parte

Applicant’s Amended Notice of Motion application or until further orders by this Court.

IV. T

he costs of the

ex parte

Applicant’s Notice of Motion dated 2

nd

December 2020 shall be in the cause.

V. The

ex parte

Applicant

shall file and serve the Respondent and Interested Parties with (i) Notice of Motion dated 2

nd

December 2020; (ii) the Amended Notice of Motion, Amended Statutory statement, and Further Affidavit if need be; (iii) a copy of this ruling; and (v) a hearing notice, within fourteen (14) days from today’s date.

VI. The Respondent and Interested Parties are granted leave to file and serve their responses to the

ex parte

Applicant’s Amended Notice of Motion within fourteen (14) days from the date of service by the

ex parte

Applicant.

VII. The hearing of the Amended Notice of Motion shall be held on

25

th

January 2021

.

VIII. In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear and determine the

ex parte

Applicant’s Amended Notice of Motion on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.

IX. All the parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies by electronic mail to the Deputy Registrar of the Judicial Review Division at

judicialreview48@gmail.com

and

asunachristine51@gmail.com

.

X. The service of pleadings and documents directed by the Court shall be by way of personal service

and

electronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division at

judicialreview48@gmail.com

with copies to

asunachristine51@gmail.com

.

XI. The parties shall also be required to file and send to the Deputy Registrar of the Judicial Review Division their respective affidavits of service evidencing personal service, by way of electronic mail to

judicialreview48@gmail.com

with copies to

asunachristine51@gmail.com

.

XII. T

he Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for hearing on

25

th

January 2021

.

XIII. The Deputy Registrar of

the Judicial Review Division shall send a copy of this ruling to the

ex parte

Applicant by electronic mail by close of business on

Thursday, 3

rd

December 2020

.

XIV. Parties shall be at liberty to apply.

13. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 3

RD

DAY OF DECEMBER 2020

P. NYAMWEYA

JUDGE