[2017] KEHC 1141 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

JUDICIAL REVIEW NO.3 OF 2017

GLOBAL EXHIBITIONS INCORPORATED LIMITED.......APPLICANT

VERSUS

THE COUNTY GOVERNMENT OF VIHIGA...................RESPONDENT

RULING

1. The applicant herein is seeking for leave to file an application for judicial review for orders of mandamus against the respondent, The County Government of Vihiga, seeking for orders that:

“an order of mandamus to issue directed at the respondent and compelling the respondent directly or through their officers and/or agents to pay to the applicant the sum of Kshs.6,011,33/- within 14 days of issuance of the order.”

2. The application is premised on the grounds stated in the application and the supporting affidavit of the applicant’s director, Edwin Masivo. The grounds in support of the application are that the applicant has obtained a judgment and decree against the respondent at Kakamega Chief Magistrate’s court which together with certified costs amount to Kshs.6,011,233/-. That despite written demand to the respondent to settle the amount, the respondent has failed, neglected and/or refused to comply with the decree in favour of the applicant. That the respondent’s failure, neglect and/or refusal to comply with the decree is unlawful and ultrar vires its statutory duties and obligations as a County government. That the respondent has acted with manifest unreasonableness in the failure, neglect and/or refusal to comply with a valid decree of the court. Further that the respondent’s conduct in refusing to settle the decretal sum plus costs despite statutory demand runs contrary to and offends the provisions of Article 47 of the Constitution of Kenya which envisages fair, expeditious, efficient, lawful, reasonable and procedurally fair administrative action.

3. The application is brought under the Fair Administrative Actions Act, 2015 and pursuant to sections 8 and 9 of the Law Reform Act Cap 26 Laws of Kenya and under Order 53 Rule 1(1)(2) and 4 of the Civil Procedure Rules, 2010.

4. The application was supported by a decree and a certificate of costs dated 12th April 2017 issued by the Chief Magistrate’s court, Kakamega. It was also supported by a certificate of order against the Government dated 5th October 2017. It was further supported by an affidavit of service sworn by a process server deponing that the decree and certificate of costs were served on the defendant’s legal counsel at the defendant’s offices at Mbale market.

DETERMINATION:

5. Order 53(1) of the Civil Procedure Rules, 2010 states as follows:

(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.

(2) An application for such leave as aforesaid shall be made ex-parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.

The application herein meets all the requirements stated in order 53(2) of the Civil Procedure Rules, 2010.

6. The scope under which a judicial review remedy of mandamus may issue was stated by the Court of Appeal in Republic vs Kenya National Examinations Council ex parte Gathenji & 8 Others, Civil Appeal No.234 of 1996where the court cited with approval, the Halsbury’s Laws of England, 4th Edition vol.7 p.111 paragraph 89 that:-

“"The order of mandamus is of most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."

7. The applicant in an application for leave to file a judicial review application has to show that he/she has a prima facie case against the respondent. In Republic vs County Council of Kwale & Another ex parte Kondo & 57 others,(1998) eKLR Waki J stated that:-

“…. Leave (for an order of mandamus) may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting relief claimed by the applicant the test being whether there is a case fit for further investigation at a fullinter parteshearing of the substantive application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially.”

8. In Re Bivac International SA (Bureau Veritas) (2005) EA. 43 the High Court expounded on the issue of discretion and stated that:-

“… whereas Judicial review remedies are at the end of the day discretionary, that discretion is a judicial discretion and, for this reason a court has to explain how the discretion, if any, was exercised so that all the parties are aware of the factors that led to the exercise of the court’s discretion. There should be an arguable case which without delving into the details could succeed and an arguable case is not ascertained by the court by tossing a coin or waxing a magic wand or raising a green flag, the ascertainment of an arguable case is an intellectual exercise in this fast growing area of the law and one has to consider without making any findings, the scope of the judicial review sought, the grounds and possible principles of administrative law involved.”

9. I have considered the application before the court. The institution intended to be sued is a public body that is subject to judicial review orders. The documents placed before the court do establish an urguable case for the applicant against the respondent. The applicant has obtained a decree against the respondent that has not been settled. Under section 21(4) of the Government Proceedings Act, the respondent is protected and given immunity from execution and attachment of its property. That leaves an order of mandamus as the only option available to the respondent. The application is thereby merited..

In the foregoing, leave to file an application for an order of mandamus against the respondent is granted as prayed.

Delivered, signed and dated at Kakamega this 29th day of November, 2017.

J. NJAGI

JUDGE

In the presence of:

Miss Bikeyo holding brief Adili ….for applicant

George …………........................ court assistant