[2023] KEHC 26880 (KLR)

Munyiri v Attorney General & another (Judicial Review E0161 of 2023) [2023] KEHC 26880 (KLR) (Judicial Review) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26880 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E0161 of 2023

JM Chigiti, J

December 8, 2023

Between

Francis Mwangi Munyiri

Applicant

and

The Honourable Attorney General

1st Respondent

Principal Secretary, Ministry of Defence

2nd Respondent

Ruling

1. The Application that is before this court is the Chamber Summons Application dated 19th October 2023 where in the Applicant seeks the following ORDERS that:1. Spent2. The Ex-parte Applicant be and is hereby granted leave to file an application seeking order of Mandamus by way of Judicial Review directed at and compelling the 2ndRespondent herein to satisfy the Judgment, Decree, Certificate of Costs and Order against the Government all in total principal sum of Ksh. 5,000,000 together with interest thereon at 14% per annum from 24th November, 2017 plus further costs of this Judicial Review proceedings until payment in full.3. Cost of the Application be met by the Respondents.

2. The Application is supported by affidavit of Francis Mwangi Munyiri sworn on 19th October,2023.

3. The applicant’s case is that the judgment issued in Constitutional and Human Rights Petition No. 400 of 2014 was delivered against the Government/Attorney General on 24th November, 2017.

4. Further that the Decree as well as the Certificate of Order for payment in issue were issued on the 31st January, 2018 and on the 27th November, 2018 respectively.

5. The Applicant argues that despite service of documents as stated in grounds (a) to (c) above, the 1st and 2nd respondents as the responsible paying and accounting parties have refused and/or neglected to settle and/or fully pay off the whole decree of the sum in issue or any part thereof.

6. It is the Applicant’s argument that there is no appeal and/or stay of judgment against payment of the said total sum stated herein.

7. The Applicant is persuaded that it is only through grant of this application and orders for orders of mandamus that the Respondents can obey the Court’s order and also that this is the only form of lawful execution that can be levied and used against the Government.

Analysis and Determination 8. Having considered the case adduced by the Applicant this court finds that only one issue for determination crystallizes and this whether the Applicant has satisfied the grounds for grant of the orders sought.

9. The requirement to seek for leave to file for judicial review orders is provided for under Order 53 Rule 1 of the Civil Procedure Rules which stipulates under mandatory terms that no Application for an order of mandamus shall be made unless leave therefore has been granted in accordance with the rule.

10. The court shall not grant leave to apply for judicial review if the applicant does not have a sufficient interest in the matter to which the application relates. The applicant has shown that he has a “reasonably arguable” case which has a realistic prospect of success in respect of the relief sought in the application.

11. The test is the same whether the issue is one of law or fact, the court may refuse to grant leave if there is delay in making the application. The court may also refuse leave if the applicant has not exhausted all appeal procedures or alternative remedies before resorting to judicial review all applications for leave for judicial review must be made ex parte, without involving any proposed respondent or proposed interested party. This is an important screening process by the court such that only meritorious and appropriate cases would be allowed to continue. Exceptionally, the court may also direct a hearing to hear from the applicant only or, if appropriate, the proposed respondent as well on the court’s own motion or upon the applicant’s or the proposed respondent’s request before deciding whether to grant or refuse leave.

12. In Sharma v Brown-Antoine [2007] 1 WLR 780 (the Privy Council), Lord Bingham and Lord Walker in their joint judgment stated that the ordinary rule to apply is the arguability test (at 787E).It was held as follows;“The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy.It is not enough that a case is potentially arguable: an applicant cannot plead potential arguability to ‘justify the grant of leave to issue proceedings upon a speculative basis which it is hoped the interlocutory processes of the court may strengthen.’ (at 787H).In applying the test of arguability, Lord Bingham and Lord Walker observed (at 787 E- G):“But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application. As the English Court of Appeal recently said with reference to the civil standard of proof in R (N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468, para 62, in a passage applicable, mutatis mutandis, to arguability.”

13. In IRC V National Federation of Self-Employed and Small Businesses Ltd (1982) 617, (1981) 2 ALL ER 93 Lord Diplock explained the need for leave as follows:“Its purpose is to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”

14. It would therefore appear that the reasons for leave are therefore two-fold and that is number one to save the court’s time and, two, so as not to leave public authorities in a state of uncertainty as to whether they can safely proceed with their operations.

15. In the same case, Lord Scarman saw the need for leave as ‘an essential protection against abuse of legal process’. In his words, “it enables the court to prevent abuse by busybodies, cranks and other mischief makers”.

16. On his part, Woolf LJ referred to the need for leave, in the same case, as ‘the unique statutory means by which the court can protect itself against abuse of judicial review’.

17. In order to avoid from delving into the merits of the case, Lord Diplock, in IRC V National Federation of Self-Employed and Small Businesses Ltd (supra) suggested the following approach:“If, on a quick perusal of the material then available, the court thinks the Application discloses what might on further consideration turn out to be an arguable case in favor of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief.”

18. Thus, on this basis, the applicant only has to show not that it is, but that it might turn out to be, an arguable case.

19. The question of whether a case is arguable or not may occasionally require some questioning on the case's merits, but this type of questioning won't go far enough to determine whether the case will win or fail. The questioning will be severely constrained or limited, only going as far as is required to decide whether the matter can be argued, and nothing beyond. It is from this perspective that I will consider the applicant’s Application.

20. I am satisfied that the Applicant has demonstrated that he has sufficient interest in the matter to which the application relates. The applicant has shown that he has a “reasonably arguable” case which has a realistic prospect of success in respect of the relief sought in the application.

21. Without getting into merits which this court must not do at this stage, I am satisfied that the Application brings out issues around the right to fair hearing under The Fair Administrative Action Act that calls for a deeper analysis which no doubt must be heard at the subsequent stage within Order 53 of the Civil Procedure Act.

Disposition: 22. The Applicant has made out a prima facie arguable case as a result of which leave to institute Judicial review proceedings do issue and I so hold.Order:1. The Application is allowed.2. The Applicant shall file and serve the substantive motion within 14 days.3. The Respondents shall file and serve their responses if any to the application within 14 days of service.4. The Applicant shall thereafter file and serve its submissions within 14 days of service.5. The Respondents shall thereafter file and serve their submissions within 14 days of service.6. The submissions shall be limited to 5 pages each.7. The matter shall be mentioned on 21. 2.2024 for further directions.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER, 2023. J. CHIGITI (SC)JUDGE