[2021] KEHC 6433 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. E054 OF 2021

BETWEEN

REPUBLIC.........................................................................................APPLICANT

VERSUS

BETTING CONTROL AND LICENSING BOARD...........1ST RESPONDENT

INSPECTOR GENERAL OF POLICE ..............................2NDRESPONDENT

CABINET SECRETARY MINISTRY OFINTERIOR & CORDINATION OF

NATIONAL GOVERNMENT .............................................3RDRESPONDENT

DIRECTOR GENERAL KENYAN CITIZENS & FOREIGN NATIONALS

MANAGEMENTSERVICES..............................................4THRESPONDENT

EX PARTE: STANDARD GLOBAL EAST AFRICA LIMITED

RULING NO.2

The Application

1. On 28th April 2021, this Court granted the ex parte Applicant herein, Standard Global East Africa Limited, leave to commence judicial proceedings against the Respondents, and directed them inter alia to file and serve a substantive Notice of Motion. The ex parte Applicant duly filed the said Notice of Motion dated 30th April 2021. The ex parte Applicant has now filed another application by way of a Notice of Motion dated 4th May 2021, seeking the following orders:

1. THAT this Application be certified urgent and be heard ex-parte in the first instance for the reasons of urgency set out in the Certificate of Urgency.

2. THAT Applicant be granted leave to Amend the Notice of Motion dated 30th April 2021 at prayer 3 to read to apply for an order of MANDAMUS to compel the 1st Respondent to issue the Ex Parte Applicant with a GAMING LICENSE.

3. THAT the cost of this Application be provided for.

2. The grounds for the application are stated in a verifying affidavit sworn on 5th May 2021 by Vasit Metodiev, the ex parte Applicant’s director and shareholder. The ex parte Applicant avers that it inadvertently used the term bookmarkers license when the actual license sought is a Gaming License, and seeks leave to amend the Notice of Motion dated 301 April, 2021 to correct and delete the term bookmarkers license and to replace it a gaming license. Further, that the amendments sought will not be prejudicial to the Respondent as they have not been served with any pleadings and orders of the court herein, and it is in the interest of justice and to correct the apparent anomaly on the face of the pleading.

The Determination

3. I have considered the application dated 4th May 2021, and note that provisions of Order 53 Rule 4(2) Civil Procedure Rules state as follows as regards to amendments of pleadings in judicial review proceedings:

“4. (2) The High Court may on the hearing of the motion allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising out of the affidavits of any other party to the application, and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he shall give notice of his intention and of any proposed amendment of his statement, and shall supply on demand copies of any such further affidavits.”

4. While a plain reading of the rule indicates that only a statement may be amended, if a relief sought in the statutory statement is amended, then the substantive notice of motion will also require to be amended as well. This Court therefore has power and discretion to allow an amendment of a substantive Notice of Motion in judicial review proceedings in light of the foregoing provisions of the law.

5. This purposive interpretation is favoured by the Courts and has been adopted in various decisions including Republic vs Commissioner of Lands and 2 others ex-parte Jimmy Mutinda, Nairobi H.C. JR ELC No.9 of 2012, Republic v Permanent Secretary, Ministry of Planning & National Development ex-parte Mwangi S. Kimenyi [2006] eKLR and Resley v Nairobi City Council [2002] 1 EA 241.

6. In addition, in light of the fact that no further steps have been taken by the ex parte Applicant in this matter, this Court will consider the prayer for amendment of the substantive Notice of Motion ex parte. This Court is in this regard guided by the overriding objectives in sections 1A and 1B of the Civil Procedure Act, including the just, expeditious and efficient disposal of disputes, and facilitated by the inherent powers in section 3A of the Act to make such orders as may be necessary for the ends of justice.

7. Lastly, no prejudice will be caused to the Respondents by the requested amendment, as they will be accorded opportunity to respond to the new pleadings filed by the ex parte Applicant.

The Disposition

8. In light of the foregoing observations and findings, the ex parte Applicants’ Notice of Motion dated 4th May 2021 is found to be merited to the extent of the following orders:

I. The ex parte Applicant is granted leave to amend the Notice of Motion dated 30th April 2021 and Chamber Summons dated 27th April 2021 inprayer 3and prayer 4 thereof respectively, toread“an order of MANDAMUS to compel the 1st Respondent to issue the Ex Parte Applicant with a GAMING LICENSE”.

II. The ex parte Applicant shall file the Amended substantive Notice of Motion and Amended Chamber Summons, within five (5) days of today’s date.

III. There shall be no order as to the costs of the ex parte Applicant’s Notice of Motion dated 4th May 2021.

IV. The ex parte Applicant shall serve all the Respondents and with (i) the Amended substantive Notice of Motion and Amended Chamber Summons (ii)the Notice of Motion dated 4th May 2021 (iii) the substantive Notice of Motion dated 30th April 2021 (iv) the Chamber Summonsdated 27thApril 2021 and its supporting documents, (v) a copy of this ruling and of the ruling delivered herein on 28th April 2021, and (vi) a hearing notice, within fourteen (14) days from today’s date.

V. Upon being served with the said pleadings and documents, the Respondents shall be required to file their responses to the Amended substantive Notice of Motion within fourteen (14) days from the date of service.

VI. A virtual mention of the ex parte Applicant’s Amended substantive Notice of Motion shall be held on24th June2021 at 3. 00pm,.

VII. In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear and determine the ex parte Applicant’s Amended substantive Notice of Motion on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.

VIII. All the parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies by electronic mail to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.com and asunachristine51@gmail.com.

IX. The service of pleadings and documents directed by the Court shall be by way of personal service andelectronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comwith copies toasunachristine51@gmail.com.

X. The parties shall also be required to file their respective affidavits evidencing service in the Judiciary’s e-filing system

XI. The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for a virtual mention on 24th June2021 at 3. 00pmand shall send the parties an electronic link for the mention.

XII. The Deputy Registrar ofthe Judicial Review Division shall send a copy of these directions to the ex parte Applicant by electronic mail by close of business onFriday, 7th May 2021.

XIII. Parties shall be at liberty to apply.

9. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF MAY 2021

P. NYAMWEYA

JUDGE