[2022] KEHC 2603 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYAHURURU

MISC. CONSTITUTIONAL AND JUDICIAL REVIEW CAUSE NO. E001 OF 2021

IN THE MATTER OF AN APPLICATION BY PETER MBURU MUGWE FOR LEAVE TO APPLY FOR AN ORDER OF MANDAMUS

-AND-

IN THE MATTER OF AN APPLICATION BY PETER MBURU MUGWE FOR JUDICIAL REVIEW ORDERS OF MANDAMUS AND PROHIBITION

-AND-

IN THE MATTER OF SECTION 8 AND 9 OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA

PETER MBURU MUGWE..................................APPLICANT

-VERSUS-

COUNTY GOVERNMENT OF LAIKIPIA....RESPONDENT

RULING

1. By a notice of motion dated 26th October, 2020 seeking prerogative orders, Applicant sought orders:

i. That a Judicial Review order of MANDAMUS do issue to compel the Respondent to issue the Applicant with a Single Business Permit for his photography business pay and further pay the Applicant an equivalent of Kshs.15,000/- per day from 25th February, 2019 with interest at court rates being loss of business income to the Applicant.

ii. That a Judicial Review order of PROHIBITION to issue prohibiting the Laikipia West Sub-County Administrator from unlawfully ejecting the Applicant from his place of business without any justifiable reason and/or a court order.

iii. That cost of this application be provided for.

2. Same was based on Section 8 and 9 of Law Reform Act Cap. 26 Laws of Kenya Order 53 Rule 3 Civil Procedure Rules 2010 and the following grounds:

i. The County Government of Laikipia is under a public duty to issue Single Business Permits to the Applicant and is unlawfully neglecting or refusing to do so.

ii. The County Government of Laikipia through its sub-county ward administrators has acted and is continuing to act in excess of his powers in refusing to carry out his aforesaid public duties and to issue a Single Business Permit to the Applicant.

iii. The County Government of Laikipia has acted and is continuing to act without any powers in refusing to carry out his aforesaid public duties and to issue a Single Business Permit to the Applicant.

iv. Due demand had been made despite which the County Government of Laikipia has refused and continues to refuse to carry out his aforesaid public duty to issue a Single Business Permit to the Applicant.

v. No other remedy exists at law to compel the County Government of Laikipia to carry out his aforesaid public duty and no other remedy is available to compel issuance of a Single Business Permit to the Applicant.

3. The same was supported by affidavit of Applicant sworn on 26th October, 2020 which reiterated his grounds above.

4. However, when matter came for mention on 11/03/2021 Applicant was advised how to apply requisite license and after payment on 9th June, 2021, he was issued with the same.

5. However, Applicant reiterated to pursue claim for damages in the instant matter and thus parties agreed to canvass issues on damages via submissions.

6. However, via grounds of opposition by Respondent filed on 28/07/2021 and dated 28/07/2021 it was stated that the applicant offends provisions of Order 53 Civil Procedure Rules 2010 as motion was filed without leave being granted to seek substantive prayers.

7. In any event, the motion was pre-empted by grant of requisite permit before grant of leave.

IN SUBMISSIONS RESPONDENT SUBMITTED:

8. That an order of MANDAMUS will only issues where it has been demonstrated that a person or office has failed to discharge a statutory obligation despite being moved to do so. Applying the foregoing to the present case, it will be noted that by his own admission, the Applicant made an application for a business permit to ‘the Laikipia Sub-County Administrator’. The Applicant was at all material times aware that all such applications are to be made to the REVENUE OFFICE, LAIKIPIA COUNTY. The Applicant is therefore an author of his own misfortune for making an application and writing unnecessary letters to the wrong office and thereafter dragging the County Government to this Honorable Court.

9. It is also not in dispute that the Applicant subsequently, on the 9th June, 2021 the Applicant made his application to the relevant County office and he was issued with the requisite permit. The Applicant can therefore not be heard complaining that the Laikipia Sub-County failed to issue the aforesaid permit whereas it is not within the mandate of the Laikipia Sub-County to issue such permits.

10. Respondent cites cases ofZacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] eKLR, Hahn v Singh, Civil Appeal No. 42 of 1983 [1985] eKLR 716, Christina Mwigina Akonya v Samuel Kairu Chege [2017] eKLR , on the issue that General Damages must be pleaded..

DETERMINATION

11. The applicant a Judicial Review order of MANDAMUS do issue to compel the Respondent to issue the Applicant with a Single Business Permit for his photography business pay and further pay the Applicant an equivalent of Kshs.15,000/- per day from 25th February, 2019 with interest at court rates being loss of business income to the Applicant.

12. He also sought a Judicial Review order of PROHIBITION to issue prohibiting the Laikipia West Sub-County Administrator from unlawfully ejecting the Applicant from his place of business without any justifiable reason and/or a court order.

13. And also the cost of this application.

14. Same was based onSection 8 and 9 of Law Reform Act Cap. 26 Laws of Kenya Order 53 Rule 3 Civil Procedure Rules 2010.

15. via grounds of opposition by Respondent filed on 28/07/2021 and dated 28/07/2021 it was stated that the applicant offends provisions of Order 53 Civil Procedure Rules 2010 as motion was filed without leave being granted to seek substantive prayers. The applicant did not rebut above averment by respondent.

16. It was not also denied that, the motion was pre-empted by grant of requisite permit before grant of leave which was also respondent averment.

17. It is thus necessary to set out in brief procedure and remedies in judicial review under section 8 and 9 of Law Reform Act cap 26 and common law as in the instant matter obtains.

PROCEDURE FOR APPLICATION FOR JUDICIAL REVIEW

18. To apply for orders of mandamus, certiorari and prohibition applicant has to seek leave to apply in the first instant. Application for leave is by way of Chamber Summons under Civil Procedure Rules Order LIII. This application is made ex parte in sub section 3 it requires that notice be given for application for leave. The notice is to be given to the registrar of the High Court.

19. Time limitation is crucial. Order 53 provides for time limits within which a person can apply for leave. The law is very strict where it comes to certiorari, you have to file your application for leave within 6 months of the date your application e.g. when a liquor licensing was denied. If you do not file within 6 months, the court cannot grant an extension.

20. Time limitation is not stipulated for Mandamus or Prohibition but it is required that you file the application within a reasonable time. Reasonable time means that you may serve 3 months after the license was denied and be denied leave or for 8 months and they grant leave. But with certiorari it has to be 6 months and it cannot be extended.

21. Order 53 (4)– Grant of leave to make the application can operate as a stay of proceedings. It can be a stay of the proceedings that you are complaining about.

22. The grant of leave will operate as a stay of proceedings where you are seeking to quash whatever has taken place under certiorari. Stay will only apply in case of certiorari and prohibition and not Mandamus.

APPLICATION FOR JUDICIAL REVIEW AFTER OBTAINING LEAVE

23. Under Section 3(1) after you have been granted leave, you make your application by way of Notice of Motion which will include a statement. Within 21 days of the grant of leave, you must make your application. If personal allegations have been made, you must serve the party that allegations have been made against. You must serve the other party, e.g. officials of liquor licensing court etc. within 8 clear days of hearing;

24. You file an Affidavit of Service stating some things usually a court process server will swear an Affidavit stating how they effected Service.

25. File the Affidavit of service within 8 clear days of hearing and file the Affidavit with a court registry and the affidavit must be in the file on the day of hearing.

26. Hearing: This is when your application for Judicial Review is done. The administrative body or tribunal will enter appearance which is done in a prescribed format. After the court listens to your allegations, the court makes a ruling and the court may rule in your favour or against. When asking for certiorari, you must categorically indicate that in your pleadings etc.

REMEDIES:

27. There are only three remedies that the courts can grant for judicial review

28. Certiorari … to quash any decision that has been made.

29. Prohibition; prohibit a body from continuing to carry out decisions wrongly or wrongfully made.

30. Mandamus… to compel the performance of a public duty where a public body or official has unlawfully refused, declined or otherwise failed to undertake the duty.

31. In the instant matter the requisite leave was not sought prior to applying for the substantive orders thus rendering the application fatally defective. Secondly, the remedies of damages sought is not available in the instant matter and finally the application is overtaken by event as the requisite license in issue was issued to the applicant thus court makes the orders;

i. The application is struck out for being fatally defective.

ii. No orders as to costs.

DATEDAND SIGNED AT NYAHURURU THIS 3RD DAY OF FEBRUARY, 2022

………………………………..

CHARLES KARIUKI

JUDGE