[2025] KEELC 423 (KLR)
The court held that the application for an order of mandamus was procedurally defective because the applicant had not sought or obtained leave to commence judicial review proceedings as required by section 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules. The court further found that judicial review...
Source-derived case information.
- Citation
- [2025] KEELC 423 (KLR)
- Parties
- Applicant: Joseph Sayi Maina (Suing on Behalf of 127 others); Respondent: Nairobi City Council; Respondent: County Governor Nairobi; Respondent: County Secretary Nairobi; Respondent: County Finance Officer Nairobi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 365 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Application
- Outcome
- application struck out
- Judges
- AA Omollo
- Legal Topics
- Judicial Review Procedure, Mandamus Orders, Leave to Commence Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Sayi Maina (Suing on Behalf of 127 others)
Applicant
Nairobi City Council
Respondent
County Governor Nairobi
Respondent
County Secretary Nairobi
Respondent
County Finance Officer Nairobi
Respondent
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant can seek orders of mandamus within a concluded civil suit without first obtaining leave for judicial review proceedings.
- 2 Whether the application for mandamus is properly before the court given the procedural requirements under the Law Reform Act and Order 53 of the Civil Procedure Rules.
Ratio Decidendi
The court held that the application for an order of mandamus was procedurally defective because the applicant had not sought or obtained leave to commence judicial review proceedings as required by section 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules. The court further found that judicial review applications must be filed as separate suits and not as interlocutory applications within already concluded civil matters. As such, the motion was premature, irregular, and incapable of being granted in its current form. The proper procedure would have been to file a fresh suit seeking leave and then, upon grant of leave, pursue the substantive orders. The court therefore...
Court Disposition
application struck out
Orders
- The motion dated 14th August, 2024 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
Maina (Suing on Behalf of 127 others) v Nairobi City Council & 3 others (Environment & Land Case 365 of 2017) [2025] KEELC 423 (KLR) (30 January 2025) (Ruling)
Neutral citation: [2025] KEELC 423 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 365 of 2017
AA Omollo, J
January 30, 2025
Between
Joseph Sayi Maina
Plaintiff
Suing on Behalf of 127 others
and
Nairobi City Council & 3 others & 3 others
Defendant
Ruling
1. The Plaintiff/Applicant has brought the present motion dated 14th August, 2024 which is headed thus;“In the High Court of Kenya at Nairobi Misc. Cause No. …of 2024 (Application for leave to commence proceedings in the nature of Judicial Review”)
2. The application is stated to be brought under section 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules. The orders sought are as follows;1. That an order of Mandumus be issued compelling the County Government Nairobi, County Governor Nairobi, County Secretary Nairobi and County Finance Officer Nairobi to compel them to Honour the Decree and orders of the court issued and or given on the 23rd March, 2000. 2.Further in the alternative damages arising from the matter herein and interest thereof.3. That the respondents be condemned to pay the costs of this application on the grounds stated in the statutory statement dated 5th July, 2024.
3. The application was filed in the current suit ELC 365 of 2017 however Judicial Review Proceedings are independent of a civil suit and even the nature of the orders sought ought to be brought in a separate file. The application is headed as one seeking leave to commence Judicial Review Proceedings against the Respondents but no such leave has been sought. But no order for leave is included in the list of prayers. Without first obtaining leave to take out such proceedings, the application is premature and is irregularly brought.
4. Thus, the application is misfiled as an interlocutory application while it is a substantive motion that would result in a judgment decree being issued. The orders to be granted if the Applicant is successful amount to a decree capable of being executed on its own and not within the file which has already been concluded and a judgement rendered. It is unprocedural to have two decrees in one suit.
5. Consequently, the Applicant not having sought for leave of the court to commence judicial review proceedings, the motion seeking orders of mandamus is premature. The proper thing for the Applicant to do is to move the court vide a fresh suit under the law Reform Act and Order 53 of the Civil Procedure Act.
6. For now, I strike out the motion dated 14th August, 2024 with no order on costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JANUARY, 2025A. OMOLLOJUDGE