[2023] KEHC 25130 (KLR)

Nderitu v Attorney General & 3 others (Judicial Review 4 of 2023) [2023] KEHC 25130 (KLR) (11 October 2023) (Ruling)

Neutral citation: [2023] KEHC 25130 (KLR)

Republic of Kenya

In the High Court at Nakuru

Judicial Review 4 of 2023

TA Odera, J

October 11, 2023

N THE MATTER OF EXECUTION AGAINST THE GOVERNMENT AND IN THE MATTER OF SATISFACTION OF DECREE AND IN THE MATTER OF SATISFACTION OF CERTIFICATE OF COSTS UNDER ORDER 21 RULE 9 OF THE CIVIL PROCEDURE RULES, 2010 AND IN THE MATTER OF SECTION 21 OF THE GOVERNMENT PROCEEDINGS ACT CAP 40 LAWS OF KENYA AND IN THE MATTER OF AN ORDER FOR MANDAMUS

Between

Joseph Macharia Nderitu

Applicant

and

Hon Attorney General

1st Respondent

District Land Registrar Nakuru

2nd Respondent

Commissioner For Lands

3rd Respondent

Principal Secretary Ministry Of Lands And Physical Planning

4th Respondent

Ruling

1. By Chamber Summons dated 28th March 2023 and filed through the firm of Mirugi Kariuki & Co. Advocates, the Applicant herein seeks the following orders: -a.Spent.b.The applicant be granted leave to institute judicial review proceedings for an order of mandamus compelling the 1st, 2nd and 3rd Respondents to pay the decretal sum of KShs. 2,510,518. 30/= and cost of the suit amounting to KShs. 213,650/= in satisfaction of the judgment delivered on 11th June 2014. c.That costs of this application be provided for.

2. The grounds on the face of the application are that the Applicant is the Decree-holder in Nakuru CMCC No. 1924 of 2004. The Applicant was successful in the suit and Judgment in his favour was entered on 11th June 2014 where the Respondents were ordered to refund a sum of KShs. 723,943. 30/= together with interest from the date of filing the suit until payment in full and at the prevailing court rates. The Applicant had obtained a Certificate of Order against the Government under Section 21 of the Government Proceedings Act. The Respondents, have to date, failed to pay the decretal sum of KShs. 2,510,518. 30/= and costs amounting to KShs. 213,650/=. Also that the Applicant is entitled to enjoy the fruits of the judgment in the former suit.

3. The Application is accompanied by a statement of facts dated 28th March 2023. The facts set out therein are similar to the grounds laid out in the Chamber Summons Application.

4. The Application is further supported by an affidavit sworn by the Applicant on 28th March 2023 and verifying the facts set out. He deponed that he is the Decree Holder in Nakuru CMCC No. 1924 of 2004 where Judgment was delivered in favour of the Applicant. The Respondents were ordered to refund a sum of KShs. 723,943. 30/= together with interest from the date of filing the suit to the date of payment in full and at the prevailing court rates. The Applicant obtained a certificate of order against the Government which was served upon the 1st Respondent as per the letter dated 14/10/2022.

5. Despite service, the Respondents have not responded to the Application.

DETERMINATION 6. I have considered the Application herein.

7. The issue before me is whether the Applicant is deserving of leave to institute Judicial Review proceedings in the manner sought in the Chamber Summons Application dated 28th March 2023.

8. Order 53 of the Civil Procedure Rules outlines the procedure to be followed in commencing Judicial Review proceedings. Order 53 Rule 1 Civil Procedure Rules provides that leave must first be sought and granted. The purpose of seeking leave was laid out in the case of Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996, Waki J. (as he then was) as cited in the case of Republic v Law Society of Kenya & Another Ex Parte Neddie Eve Akello; Marianne Jebet Kitany (Interested Party) [2020] held as follows:“The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any application for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is 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.”

9. The test for granting leave is that there must be an arguable prima facie case. In the case of Aga Khan Education Service Kenya v Republic Ex-Parte Ali Seif & 3 Others [2004] eKLR, the Court of Appeal held “…So once there is an arguable case, leave is to be granted and the court, at that stage, is not called upon to go into the matter in depth…”

10. The Applicant is seeking leave to apply for orders of mandamus to compel the Respondents to pay the decretal sum adjudged in Nakuru CMCC 1924 of 2004.

11. Section 21 of the Government Proceedings Act and Order 29 of the Civil Procedure Act provide the procedure for when a party intends to execute against the Government. The strict procedure was explained by the Court of Appeal in Kisiya Investments Ltd. V AG (2005) 1 KLR 74.

12. I have noted that indeed there is a decree dated 28th April 2022 attached to the Application with respect to Nakuru CMCC No. 1924 of 2004 Joseph Macharia Nderitu v Hon. Attorney General, District Land Registrar Nakuru & Commissioner of Lands. I have also seen the attached Certificate of order against the Government with respect to the same matter and a letter from Mirugi Kariuki & Co. Advocates and dated 14th October 2022 forwarding to the Hon. Attorney General the Decree, Certificate of Costs and a Certificate of Order against the Government. I find that the Applicant has met the threshold of an arguable case and is therefore entitled to leave to commence the judicial review proceedings as sought.

13. I hereby allow the Chamber Summons Application dated 28th March 2023 in terms of prayer 2. The substantive application be filed within the next 21 days from today.

14. Costs shall abide the outcome of the case.

15. Mention on 6. 11. 23 for directions /further orders.

DATED, DELIVERED AND SIGNED AT KISII THIS 11TH DAY OF OCTOBER 2023. TERESA ODERAJUDGE