[2023] KEHC 21513 (KLR)
The court held that the preliminary objection was premature because, at the leave stage of judicial review proceedings, the court's role is limited to determining whether the application for leave is merited on its face. The substantive hearing, including any objections regarding procedural compliance with the...
Source-derived case information.
- Citation
- [2023] KEHC 21513 (KLR)
- Parties
- Applicant: John Lennox Kochieng; Respondent: County Assembly Service Board Of Homa Bay; Respondent: Clerk, Homa Bay County Assembly
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Judicial Review E006 of 2023
- Procedural Posture
- Judicial Review / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- KW Kiarie
- Legal Topics
- Preliminary Objection, Leave for Judicial Review, Mandamus Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Lennox Kochieng
Applicant
County Assembly Service Board Of Homa Bay
Respondent
Clerk, Homa Bay County Assembly
Respondent
Procedural Posture
Judicial Review / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the proceedings are defective for failure to extract a certificate of order against the government before seeking enforcement.
- 2 Whether the preliminary objection is properly raised at the leave stage of judicial review proceedings.
Ratio Decidendi
The court held that the preliminary objection was premature because, at the leave stage of judicial review proceedings, the court's role is limited to determining whether the application for leave is merited on its face. The substantive hearing, including any objections regarding procedural compliance with the Government Proceedings Act or Civil Procedure Rules, is only appropriate after leave has been granted. Therefore, objections based on failure to extract a certificate of order against the government or related procedural defects cannot be entertained at this preliminary stage. The preliminary objection was dismissed as it was not properly raised at this point in the proceedings.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs to the applicant.
Full Case Text
Judgment text and source record
21 paragraphs
Kochieng v County Assembly Service Board of Homa Bay & another (Judicial Review E006 of 2023) [2023] KEHC 21513 (KLR) (31 July 2023) (Ruling)
Neutral citation: [2023] KEHC 21513 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Judicial Review E006 of 2023
KW Kiarie, J
July 31, 2023
Between
John Lennox Kochieng
Applicant
and
The County Assembly Service Board Of Homa Bay
1st Respondent
Clerk, Homa Bay County Assembly
2nd Respondent
Ruling
1. The 1st respondent raised a preliminary objection under section 21 of the Government Proceedings Act & order 29 rules 2, 3 & 4 of the Civil Procedure Act. It is premised on the following points:a.That this proceedings offends order 29, 2, 3 and 4 of Civil Procedure Rules 2010 and Section 21 of Government Proceedings Act for it has by passed extraction of certificate of order against government and its service thereof; this application therefore is incorrigibly defective and only due for striking out/dismissal in lemine litis.b.The 1st respondent having been procedurally dragged in this suit shall move court to award costs.
2. The preliminary objection was opposed on the following grounds:a.The application does not comply with order 51 rule 10 of the Civil Procedure Rules as the same does not mention the rule under which the same is raised.b.The Notice to show cause arose out of order of the court and not out of the application of the decree holder.c.The provision of Section 21(5) of The Government Proceedings Act was to take effect if the decree holder was not satisfied with the show cause of the judgment –debtor, but the J.D refused or failed to show cause by serving the court by an order irregularly obtained from a duty Judge restraining the Deputy Registrar from complying with the court order made on the 9th March, 2023.
3. The preliminary objection is premature. The first step in a judicial review of this nature is for the court to weigh whether the leave being sought to file for an order of mandamus is merited. The court at this stage does not hear the parties. If the court on the face of the application is satisfied, it grants the leave. Once the leave is granted, parties involved will be at liberty to argue their case.
4. The preliminary objection is therefore dismissed with costs.
DELIVERED AND SIGNED AT HOMA BAY THIS 31ST DAY OF JULY, 2023KIARIE WAWERU KIARIEJUDGE