https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9655

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **JUDICIAL REVIEW MISC. E094 OF 2025** **BETWEEN** **KARIM BOGHO ……………………………………….……. APPLICANT** **VERSUS** **CITY COUNCIL OF NAIROBI ………………..……1ST RESPONDENT** **GOVERNOR, NAIROBI CITY COUNTY……..….2ND RESPONDENT** **CHIEF OFFICER FINANCE,** **NAIROBI CITY COUNTY ..………………….…….3RD RESPONDENT** **COUNTY SECRETARY,** **NAIROBI CITY COUNTY ...............................4TH RESPONDENT** **RULING** 1. By a Chamber Summons Application dated 11th July 2025 brought under Order 53 Rule 1 of the Civil Procedure Rules 2010, Sections 8(2) and 9 of the Law Reform Act, Cap 26 Laws of Kenya the Applicant moved this honourable court seeking leave to apply for: 2. Spent. 3. Leave be granted to the Applicant to apply for an order of Mandamus compelling the Respondents to pay the Applicant the sum of Kshs. 1,720,907.86 being the decretal amount as at 29th April 2025, together with costs assessed at Ksh 138, 485 in Milimani CMCC Civil Suit No. 6529 of 2023 – Karim Bogho v City Council of Nairobi, and interest thereon at court rates from 3rd August 2017 until payment in full 4. The cost of this application be awarded to the Applicant. 5. The Application was supported by a Statutory Statement and verifying affidavit of even date by Karim Bogho 6. It is deponed that on 3rd August 2017, Hon. E. Wanjala in Milimani CMCC Civil Suit No. 6529 of 2023 awarded the Applicant damages in amount of Ksh. 897,945.73, with additional costs assessed at Kshs. 119, 647. That as at 29th April 2025, the decretal amount had accumulated to Kshs. 1,720,907.86 with costs of Kshs. 138,485 which amount remains outstanding and unpaid. 7. The Applicant avers that the county government of Nairobi has failed and refused to settle the abovementioned court decree. 8. The Applicant is a semi-retiree with medical conditions, urgently needs the awarded funds to cover medical expenses, highlighting the urgency of the situation. 9. The 3rd Respondent herein submitted a Replying Affidavit sworn in my Asha Abdi, the Chief Officer- Finance. 10. The 3rd Respondent avers that the Respondents herein have not refused and/or neglected to comply with the court’s judgment but the stringent processes common with a government. 11. That the Respondents are desirous of paying all the pending Decretals and went ahead to constitute a committee on verification of decretals starting the first phase of the process on 12th May, 2025. 12. That the 1st Respondents has fully committed all amounts allocated for payment of legal fees and decretals for the financial year 2025/2026 and therefore the Applicants payment can only be initiated during the coming financial year being 2026/2027. 13. I have considered the pleadings by the Applicants and the main issue for determination is whether the Applicant has made a case to warrant the reliefs sought. 14. The applicable law on leave to commence judicial review proceedings is Order 53 Rule 1 of the Civil Procedure Rules, which provides that no Application for judicial review orders should be made unless leave of the court was sought and granted. The reason for the leave was explained by Waki J (as he then was), in **Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996** as follows: *“The purpose of Application for leave to apply for judicial review is firstly to eliminate at an early stage any Applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the Applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an Application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived…Leave 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 the relief claimed by the Applicant the test being whether there is a case fit for further investigation at a full inter partes hearing 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.”* 1. Before grant of leave, it is crucial to establish that the case is arguable without delving into the merits of the arguments of the parties as held in the case of **Republic vs. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka [20061 1 EA 321** where the court held: *“That leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case for granting leave”.* 1. A perusal of the pleadings demonstrates that the Applicants obtained a Court decree that is to be enforced through institution of judicial review orders of mandamus. In ***Republic V Attorney General Exparte James Alfred Koroso JR 44/2012*** Odunga J (as he then was in the High Court) added his voice to the question of how a decree against the Government can be settled through execution process and stated: *“…in the present case, the Exparte Applicant has no other option of realizing the fruits of this judgment since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgment that he has been awarded is realized. Unless something is done, he will forever be left babysitting his barren decree. This state of affairs cannot be allowed to prevail under out current constitutional dispensation in light of provisions of Article 48 of*[*the Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution)*which enjoins the state to ensure access to justice for all persons. Access to justice cannot be said to have been ensured when persons in whose favour judgments have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgments due to road blocks placed on their paths by actions or inactions of public officers. Public offices, it must be remembered, are held in trust for the people of Kenya and public officers must carry out their duties for the benefit of the people of the Republic of Kenya. To deny a citizen his or her lawful rights which have been decreed by a court of competent jurisdiction is, in my view, unacceptable in a democratic society.”* 1. From the above statutory and judicial pronouncements, which restate the law, it is clear that the only remedy available to such a decree holder as the *ex-parte* Applicant herein against the Government is judicial review remedy of mandamus to compel the Accounting Officer of the relevant Ministry or State Department to settle the material decree. 2. It is expected that judgment debtors settle decrees once judgment is rendered. In this case, the law provides that where there is no payment made, only mandamus can issue to ensure that justice may eventually be served because there is no other remedy available to the decree holder/ Applicant. 3. Having considered the application in its entirety, I am satisfied that this Application meets the threshold for the grant of the orders sought. I therefore find that the Applicant’s application for grant of leave to commence judicial proceedings against the Respondents is merited and I proceed to grant the prayers sought. 4. ***Final Orders:*** 5. ***The Applicants are hereby granted leave to apply for an order of Mandamus compelling the Respondents to pay the Applicant the sum of Kshs. 1,720,907.86 being the decretal amount as at 29th April 2025, together with costs assessed at Kshs. 138, 485 in, and interest thereon at court rates until payment in full.*** 6. ***The Substantive Motion to be filed within 14 days from the date of this Ruling.*** 7. ***The costs of this Application to abide in the outcome of the main motion.*** **Dated, Signed and Delivered Virtually on this 2nd day of July, 2026.** **HON. T. W. OUYA, OGW** **JUDGE** **In the presence of:** Ms. Kimani for Mr. Ochieng for the Applicant Masaku for Ms. Makutwa for the Respondent Nyabuto – Court Assistant