[2025] KEELC 122 (KLR)
The court held that at the leave stage in judicial review proceedings, the applicant is only required to demonstrate a prima facie arguable case. The existence of a certificate of order for costs or proof of a demand for payment is not a prerequisite for the grant of leave but may be relevant at the substantive...
Source-derived case information.
- Citation
- [2025] KEELC 122 (KLR)
- Parties
- Applicant: Kokwo Multi-Purpose Co-operative Society; Respondent: Principal Secretary Ministry of Lands, Housing and Urban Development; Respondent: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Judicial Review Case E001 (B) of 2024
- Procedural Posture
- Judicial Review Application / Ruling on Leave to Commence Judicial Review
- Outcome
- Application for leave granted.
- Judges
- CK Nzili
- Legal Topics
- Judicial Review Leave, Mandamus Orders, Government Liability, Enforcement of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kokwo Multi-Purpose Co-operative Society
Applicant
Principal Secretary Ministry of Lands, Housing and Urban Development
Respondent
Attorney General
Respondent
Procedural Posture
Judicial Review Application / Ruling on Leave to Commence Judicial Review
Legal Issues
- 1 Whether the applicant has established a prima facie case to warrant leave to commence judicial review proceedings for an order of mandamus.
- 2 Whether the existence or non-existence of a certificate of order for costs or a demand affects the grant of leave at this stage.
Ratio Decidendi
The court held that at the leave stage in judicial review proceedings, the applicant is only required to demonstrate a prima facie arguable case. The existence of a certificate of order for costs or proof of a demand for payment is not a prerequisite for the grant of leave but may be relevant at the substantive hearing. The respondents did not challenge the arguability of the applicant's case or assert that the claim was frivolous, unmeritorious, or already satisfied. Consequently, the threshold for leave was met, and the application was granted to allow the applicant to file and serve the substantive notice of motion for mandamus.
Court Disposition
Application for leave granted.
Orders
- Leave is granted to the applicant to commence judicial review proceedings for an order of mandamus.
- The substantive notice of motion shall be filed and served within 21 days from the date of the ruling.
Full Case Text
Judgment text and source record
22 paragraphs
Kokwo Multi-Purpose Co-operative Society v Principal Secretary Ministry of Lands, Housing and Urban Development & another (Environment and Land Judicial Review Case E001 (B) of 2024) [2025] KEELC 122 (KLR) (22 January 2025) (Ruling)
Neutral citation: [2025] KEELC 122 (KLR)
Republic of Kenya
In the Environment and Land Court at Kitale
Environment and Land Judicial Review Case E001 (B) of 2024
CK Nzili, J
January 22, 2025
Between
Kokwo Multi-Purpose Co-operative Society
Applicant
and
The Principal Secretary Ministry of Lands, Housing and Urban Development
1st Respondent
Attorney General
2nd Respondent
Ruling
1. What is before the court is an application dated 14/11/2023. The exparte applicant is seeking leave to institute judicial review proceeding for an order of mandamus directed at the respondents to settle a decree issued against them in Kitale High Court Petition No. 16 of 2013 on 1/10/2015 for Kshs.7,896,644/=. The exparte applicant relies on written submissions and a list of authorities dated 20/9/2024 namely Republic -vs- County Government of Nairobi and Others Exparte Kingpost Ltd [2021] eKLR, Republic -vs- Kenya National Examination Council Exparte Gathenji and Others [1997] eKLR, Joseph Muriithi Nyaga -vs- Embu County Government [2021] eKLR and Mirigo & Others -vs- Minister for Lands & Others (Civil Appeal 277 of 2011)[2014] KECA (881)KLR.
2. The application is opposed by the respondents on the grounds of opposition dated 17/7/2024 for non-exhaustion of the Government Property Act Cap 40 Laws of Kenya. The respondents rely on written submissions dated 30/10/2024 that there is no certificate of order for costs or a demonstration of a demand on the respondents to pay, which has been declined. Reliance is placed on Co-operative Bank of (K) Ltd -vs- Banking Insurance & Finance Union (K) [2015] eKLR, Trust Bank Ltd -vs- Amako Co. Ltd [2003] eKLR, Kenya Shell Ltd -vs- Kobil Petroleum Ltd [2006] eKLR and Nyamogo & Nyamogo Advocates -vs- Barclays Bank of (K) Ltd [2002] eKLR.
3. The discretion on whether to grant leave in Judicial Review is ordinarily exercised exparte. A party seeking leave must meet the threshold set by the courts. It acts as a sieving stage to avoid frivolous or unmeritorious applications. There must be prima facie evidence of an arguable case as held in Agha Khan Educational Services Kenya -vs- Rep Exparte Self [2000] eKLR. The applicant must avail enough material for the court to consider without going into the matter in depth to decipher if an arguable case has been demonstrated calling for determination by way of a substantive motion.
4. Once the court is satisfied that there is an arguable case, it proceeds to issue leave as prayed. The respondents are not saying that there is no prima facie case for consideration past the leave stage. The issue of whether or not a certificate of order of stated costs exists and has not been honoured has nothing to do with an arguable case. Such defence or response will only be available to the respondents once leave is granted and the substantive motion is filed and served.
5. At the leave stage, the respondents have not said that the claim by the exparte applicant is frivolous, unmeritorious or has been honoured or is overtaken by events. The upshot is that I grant the application dated 14/11/2023. The substantive notice of motion shall be filed and served within 21 days from the date hereof. Mention on 11/02/2025.
RULING DATED, SIGNED AND DELIVERED AT KITALE THIS 22ND DAY OF JANUARY 2025. HON. C.K. NZILIJUDGE, ELC KITALE.