[2023] KEHC 20351 (KLR)
The court held that the application for mandamus was fundamentally flawed because such orders are only available in substantive judicial review proceedings, not in interlocutory applications. The procedure for obtaining mandamus requires leave to be sought first, followed by a substantive motion, which was not...
Source-derived case information.
- Citation
- [2023] KEHC 20351 (KLR)
- Parties
- Applicant: Rapid PI Limited; Respondent: Nitunze Savings & Credit Co-operative Society Limited (in Liquidation); Respondent: Official Liquidators (Nitunze Sacco Society Limited); Respondent: Commissioner of Co-operative Societies; Respondent: Valley Auctioneers
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 38 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons Seeking Mandamus Orders
- Outcome
- application struck out with costs to the respondents
- Judges
- WM Musyoka
- Legal Topics
- Judicial Review, Mandamus Orders, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rapid PI Limited
Applicant
Nitunze Savings & Credit Co-operative Society Limited (in Liquidation)
Respondent
Official Liquidators (Nitunze Sacco Society Limited)
Respondent
Commissioner of Co-operative Societies
Respondent
Valley Auctioneers
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons Seeking Mandamus Orders
Legal Issues
- 1 Whether a mandamus order can be granted in interlocutory proceedings.
- 2 Whether the parties against whom mandamus is sought were properly joined to the proceedings.
- 3 Whether the application for mandamus constituted an abuse of court process.
Ratio Decidendi
The court held that the application for mandamus was fundamentally flawed because such orders are only available in substantive judicial review proceedings, not in interlocutory applications. The procedure for obtaining mandamus requires leave to be sought first, followed by a substantive motion, which was not followed in this case. Additionally, the parties against whom the mandamus was sought were not original parties to the proceedings and had not been properly joined, nor had leave been granted for their joinder. As such, no relief could be granted against them. The court concluded that the application was an abuse of court process and warranted striking out with costs to the...
Court Disposition
application struck out with costs to the respondents
Orders
- The chamber summons dated April 19, 2019 is struck out.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
27 paragraphs
Rapid PI Limited v Nitunze Savings & Credit Co-operative Society Limited (in Liquidation) & 3 others (Miscellaneous Application 38 of 2019) [2023] KEHC 20351 (KLR) (21 July 2023) (Ruling)
Neutral citation: [2023] KEHC 20351 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Application 38 of 2019
WM Musyoka, J
July 21, 2023
Between
Rapid PI Limited
Applicant
and
Nitunze Savings & Credit Co-operative Society Limited (in Liquidation)
1st Respondent
Official Liquidators (Nitunze Sacco Society Limited)
2nd Respondent
Commissioner of Co-operative Societies
3rd Respondent
Valley Auctioneers
4th Respondent
Ruling
1. On October 29, 2021, I delivered a ruling herein, where I allowed the substantive motion, dated March 27, 2019.
2. Subsequent to that ruling of October 29, 2021, the applicant, Rapid PI Limited, brought a chamber summons herein, dated April 19, 2022, seeking mandamus orders, to compel the Commissioner of Co-operative Societies and the official receiver, to do a number of things, with respect to the assets and affairs of the 1st respondent herein, Nitunze Sacco Society Limited.
3. The application, dated April 19, 2019, is hopelessly misconceived and a non-starter.
4. Firstly, a mandamus order is not available for granting in interlocutory proceedings. It is available under the Law Reform Act, cap 26, Laws of Kenya and order 53 of the Civil Procedure Rules. A mandamus order is a prerogative relief, sought and obtained in substantive proceedings. The procedure is that leave is obtained first, by way of a summons in chambers, after which a substantive motion is filed. Mandamus is one of those orders sought and obtained in judicial review proceedings, which are sui generis.
5. Secondly, the parties, against whom the mandamus order is sought, in the application, dated April 19, 2019, if it were a valid application, which it is not, are and were not original parties to these proceedings, they have never been joined to these proceedings, and leave has not been granted for their joinder. No case can lie against them in these proceedings.
6. The chamber summons, dated April 19, 2019, is filed in abuse of court process. It is for striking out. I hereby strike it out, with costs to the respondents. Orders accordingly.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS…………21ST……….….DAY OF ……………………JULY…………………….2023WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.AppearancesMr. Wangira, instructed by Wangira Okoba & Company, Advocates for the applicant.Mr. Cheptarus, instructed by Joseph CK Cheptarus & Company, Advocates for the respondents.