[2025] KEHC 2199 (KLR)

Republic v Chief Magistrate Court Machakos & another; Paul Kasema t/a Royal Insurance Broke & 3 others (Interested Parties); Mwangaza Genenral Supplies & Contractor Ltd (Exparte Applicant) (Judicial Review Application E003 of 2023) [2025] KEHC 2199 (KLR) (31 January 2025) (Judgment)

Neutral citation: [2025] KEHC 2199 (KLR)

Republic of Kenya

In the High Court at Machakos

Judicial Review Application E003 of 2023

FR Olel, J

January 31, 2025

IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW FOR ORDERS OF CERTIORARI AND MANDAMUS

AND IN THE MATTER OF CONTRAVENTION OF ARTICLES 2,3,10,19,20,21,22,27,28,41,47,48,55 AND 259 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF: SECTION 4 OF THE FAIR ADMINISTRATIVE ACTION ACT, NO 11 OF 2015 AND IN THE MATTER OF: ARTICLE 159 OF THE CONSTITUTION OF KENYA 2010. AND IN THE MATTER OF: INTEREST INSURED MWANGAZA GENERAL CONTRACTORS LTD AND IN THE MATTER OF MACHAKOS CHIEF MAGISTRATE COURT CMCC 408 OF 2019, 277 OF 2022, 429 0F 2019 & MACHAKOS INTERLOCUTORY CIVIL APPEAL NO. E53 OF 2023.

Between

Republic

Applicant

and

Chief Magistrate Court Machakos

1st Respondent

Attorney General

2nd Respondent

and

Paul Kasema t/a Royal Insurance Broke

Interested Party

Fidelity Insurance Company Limited

Interested Party

Jefferson Kimonyi Ndambuki

Interested Party

Insurance Regulatory Authority

Interested Party

and

Mwangaza Genenral Supplies & Contractor Ltd

Exparte Applicant

Judgment

A. Introduction 1. The Application for determination before court is the Ex-parte Applicant’s Notice of Motion Application dated 6th July 2023 filed pursuant to provisions of Order 53 Rule 3 of the Civil Procedure Rules 2010, Sections 8 and 9 of the law Reform Act, and all other enabling of law. The Ex parte Applicant seeks for orders that;a.That a writ or order of certiorari to remove to this Honourable court to quash proceedings and subsequent Ruling and Judgment in Machakos CMCC No 408 of 2019. b.That a writ or order of certiorari to remove to this court to quash the proceedings and consequent ruling and judgment in Machakos CMCC 429 of 2019. c.That a writ or order of certiorari to remove to this court to quash the Ruling delivered on 25th May, 2023 on the interlocutory Appeal No E53 of 2023, Machakos.d.That a writ or order of mandamus be and hereby issued directing the 1st and 2nd interested parties to honour the contract and indemnify the 3rd Interested party’s injuries and damages that might have been occasioned by the Exparte applicant’s motor vehicle KCA 100J Toyota Land cruiser.e.A declaration be and hereby issued that the exparte applicant had a valid comprehensive insurance policy No 503/0910/17 issued by the 2nd Interested party and that the said 2nd Interested party, Fidelity Insurance company has a duty to honour and compensate the injuries, caused by the Exparte’s insured motor vehicle KCA 100J Toyota Land Cruiser.f.That this honourable court be pleased to make further orders as it may deem just and fit.g.That costs of the application be provided for

2. The Application is supported by the grounds stated on the face of the said Application, statutory statement of fact, verifying and supporting Affidavit of Peter Mbiu Mutunga both sworn on 6th July 2023 respectively.

3. The said Application is opposed by the 1st and 2nd respondent through their grounds of opposition dated 17th July 2023, the 1st interested party through their grounds of opposition & Replying Affidavit, both dated 14th December 2023, the 2nd Interested party grounds of opposition dated 28th July 2024 and the 3rd interested party Replying Affidavit dated 18th July 2023.

(B) The Pleadings i. The Ex Parte Applicant's Pleadings 4. The Ex parte applicant avers that on or about 20th September 2017, he entered into an agreement with the 1st interested party, who runs an insurance brokerage firm to take out a comprehensive insurance cover for his motor vehicle, Toyota Land Cruiser Registration Number KCA 100J ( hereinafter referred to as the 1st suit Motor vehicle), paid all the premiums as required and was issued with comprehensive insurance Policy No.503/0910/17 valid until 20th September 2018.

5. On or about 7th August 2018, while driving the 1st suit motor vehicle, it was involved in an accident with motor vehicle registration number KBU 583J (hereinafter referred to as the 2nd suit motor vehicle), and as a result one Jefferson Kimonyi (the 3rd Interested party herein) sustained bodily injuries. As a result, the 3rd party interested party filed Machakos Civil Suit No. 408 of 2019, seeking damages for injuries sustained, and later also filed Machakos CMCC No 429 of 2019 seeking compensation for material damage to his Motor vehicle .

6. Upon being served with summons and pleadings filed, he did forward the same to the 1st and 2nd interested parties herein, who assured him that they would take up the matter under the insurance principle of subrogation. The suit filed by the 3rd interested party (Machakos Civil Suit No 408 of 2019) was heard on merit, and eventually, judgment was delivered in favour of the 3rd Interested party.

7. Once again, he did forward the obtaining judgment to the 1st and 2nd interested parties for settlement, but they inexplicably refused to pay the said claim and/or to indemnify him as expected. This prompted him to file a declaratory suit (Machakos CMCC No 277 of 2022) and concurrently sought orders of stay of execution of the primary suit decree pending determination of the declaratory suit filed.

8. The said application for stay of execution was dismissed prompting him to further file Machakos HCCA No E053 OF 2023, appealing against the said ruling/decision. Again, due to constant threats of pending execution, he once again sought orders of stay of execution of the primary suit decree pending hearing and determination of the Appeal. This application too was heard and dismissed vide a ruling dated 25th May 2023.

9. Undeterred the Ex parte Applicant resorted to filing this Judicial review Application to quash the primary suit decree and the two subsequent rulings delivered in the declaratory suit and the Appeal as the said decisions were irrational, unfair, and locked him out from the seat of justice, yet his grievances had not been heard on merit.

10. Further, the Ex parte Applicant averred that he was also seeking an order of mandamus to compel the 1st and 2nd interested parties to honour their obligation under the comprehensive insurance policy taken out to cover the 1st suit motor vehicle.

11. The Ex parte Applicant urged the court to note that the primary suit substantially proceeded in his absence, and it was important for the 1st and 2nd Interested parties to be held liable to curtail the bad precedent they were setting of not indemnifying their clients, yet he had comprehensively insured the 1st suit motor vehicle and paid its premium in full.

12. He urged the court to find that his application had merit and that the same be allowed with costs.

ii. The Responses filed by the 1st & 2nd Respondents and the 1st to 4th Interested Party. 13. The 1st and 2nd respondents opposed this Application through their grounds of opposition dated 17th July 2023. It was averred that the Application under consideration was fatally defective, incompetent, frivolous, and untenable both in form and substance. The Ex parte Applicant had made sweeping false allegations and misrepresented facts tailored to win the court's sympathy but critically failed to demonstrate the actions, if any, of the respondents which were laced with illegality procedural impropriety, and/or irrationality as alleged

14. The 1st and 2nd respondents further pointed out that the application was pre-maturely filed, as the action complained of revolved around the merits of the court decision in Machakos CMCC NO. 408 of 2019, Machakos CMCC No 429 of 2019, and Machakos HCC Appeal No E53 of 2023. This court lacked jurisdiction to interfere with the said proceedings, and/or rulings already delivered and the cause of action available for the Ex parte applicant if dissatisfied was to Appeal. The orders sought, thus fell short of the meaning of “an administrative decision” as defined under Section 2 of the Fair Administrative Action Act, and were not ripe for this court’s intervention.

15. To that extent, the 1st and 2nd respondents reiterated that the said Application was misconceived, incompetent a non-starter and prayed that the same be dismissed with costs.

16. The 1st to 3rd Interested parties also opposed this Application vide the 1st Interested party grounds of opposition and Replying Affidavit dated 14th December 2023 respectively, the 2nd Interested party grounds of opposition dated 28th July 2024, and the 3rd Interested party replying Affidavit dated 18th July 2023.

17. They all deponed that the Ex parte Applicant was a vexatious litigant, who kept on moving from court to court trying to shop for favourable orders aimed at frustrating the 3rd interested party, by denying him access to the fruits of his judgment. To that extent, the said application under consideration was frivolous, scandalous, and constituted an abuse of the court process.

18. The 3rd interested party had filed two suits to wit; Machakos CMCC No 408 of 2019 (hereinafter referred to as the primary suit) seeking compensation for injuries suffered and Machakos CMCC No 429 of 2019 seeking compensation for material damage caused to the 2nd suit motor vehicle, resulting from its collision with the 1st suit motor vehicle.

19. In the primary suit the Ex parte Applicant had enjoined the 1st and 2nd interested parties as third parties/interested parties to the suit and the question of liability had been determined with the participation of all the said parties. Liability in the said suit was determined at 30:70 in favour of the 3rd interested party herein. It was noted that the Ex-parte Applicant was represented by counsel in all the suits filed and never challenged the decree issued in the primary suit on Appeal.

20. The Ex parte Applicant, then opted to file a declaratory suit, Machakos CMCC No E277 of 2002, and simultaneously applied for an order of stay of execution of the primary decree. This Application was dismissed on 16th March 2023, prompting him to file an Appeal, being; Machakos HCCA No E503 of 2023. The Ex parte Applicant once again filed a second application for stay of execution of the primary decree, and his application was once again dismissed by the High Court on 25th May 2023.

21. The declaratory suit and the Appeal filed, were yet to be determined on merit and no judgment had been passed in either of the two suits, which were being handled by courts of competent jurisdiction and therefore could not be subject to orders of “certiorari” as pleaded.

22. The 1st to 3rd interested party thus urged this court to find that the Ex parte Applicant was a vexatious litigant and prayed that his Application be dismissed with costs.

23. The 4th Interested party did not enter an Appearance nor did they file any pleadings in this Matter.

24. The Application was disposed of by way of written submissions.

C. Submissions a. Ex parte Applicant’s Submissions 25. The Ex-Parte Applicant filed submissions dated 18th March 2024 wherein he reiterated the contents of all the pleadings filed in support of his Application. He relied on the case of Patoli Vrs Kabale District Local Government canal & others(2008) 2EA, 300-304, which was cited with approval in the case of R vs Chief Magistrate Milimani law courts & 5 others; Ex parte Google Kenya Limited(2018) eklr, where it was emphasized that to succeed in an application for judicial review, the applicant had to show that the decision challenged or act complained of was tainted with illegality, irrationality and procedural impropriety.

26. The Ex parte Applicant further submitted that he had been unfairly treated and had been condemned unheard, yet he had comprehensively insured the 1st suit motor vehicle through the 1st and 2nd interested party and had a legitimate expectation to be indemnified. Principles of natural justice guided administrative decision-making and dictated that a person must be accorded adequate opportunity to present his/her case and have the same determined in a fair and unbiased manner.

27. It was not in dispute that Machakos CMCC No 408 of 2019, Machakos CMCC No 429 of 2019, and Machakos CMCC No 277 of 2022 were all heard and determined in his absence and he was within his rights to have the unfair proceedings “quashed”. Reliance was placed in the case of Kenya National Examination Council Vrs Republic; Ex parte Geoffrey Gathenji Njoroge Civil Appeal No. 266 of 1996 (1997)eKLR and Associated Provincial Picture Houses Vrs Wednesbury Corporation (1948) 1KB, 223

28. On whether the orders of “Mandamus” should issue against the 1st and 2nd Interested parties to compel them to fulfil their obligations under the principle of subrogation, It was submitted that under Section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act, it was statutorily provided that the 2nd interested party was responsible for indemnifying their insured and since he had a valid insurance cover as at the time of the accident, they should have indemnified him.

29. The 2nd interested party had not filed a suit to repudiate the insurance cover issued, and therefore could not run away from their contractual obligation under the insurance policy . Reliance was placed in the case of Commission of Administrative Justice vs Kenya Vision 2020 Delivery Board & 2 others (2019), & Civil suit No 2 of 2019 John Njogu Vrs Invesco Assurance Co ltd; Joseph Ouma Nyachoko (Interested party) 2022, Eklr, where it was held that the insurance company had an obligation under Section 10(1) of the Insurance (Motor vehicle Third Party Risks) Act, to settle the liability arising from the insurance contract.

30. The Ex parte Applicant thus urged the court to find that his Application had merit and the court be pleased to grant the same.

b. The 1st and 2nd Respondents Submissions. 31. The 1st and 2nd respondents filed their submissions dated 7th June 2024, where they reiterated the fact that the Judicial review application filed lacked legal basis, was untenable, and did not meet the threshold of the meaning of an administrative decision as defined under Section 2 of the Fair Administrative Action Act. 2012.

32. The two suits filed by the Ex parte Applicant namely Machakos CMCC No 429 of 2019 and Machakos HCCA No E053 of 2023 were still pending determination, while the Ex parte Applicant had opted not to Appeal against the decree passed in the primary suit, made in favour of the 3rd Interested party.

33. The orders sought for “certiorari” and “mandamus” were therefore untenable and could not be granted as this suit challenged the merits of various decisions reached by courts of competent jurisdiction. Reliance was placed on the case of Republic vs Public Procurement Administrative Review Board and 2 others Exparte; Sanitam Services (E.A) Limited (2013), to emphasize the fact that judicial review applications were concerned with the review of the decision-making process, rather than the merits of the decision reached.

34. The 1st and 2nd respondents further submitted that what the ex-parte applicant was seeking to do was to substitute a valid decision of the tribunal, through the back door, instead of Appealing against the said decision in the normal manner.

35. Section 7(2) of the Fair Administrative Act only allowed this court to review administrative decisions where the administrator had acted without jurisdiction, exceeded their jurisdiction, delegated power, where the statute did not allow for the same, and where such decisions were unreasonable, disproportionate and made in violation legitimate expectation of the Applicant.

36. The Ex parte Applicant had not provided evidence to prove his case based on the above parameters but had instead made sweeping unsubstantiated allegations, which the court could not rely on. Reliance was placed on the case of the Council of Civil Service Union versus Minister for Civil Service (1985) and Sanghani Investment Limited vs Officer in charge of Nairobi Remand and Allocation Prison (2007). Where issues relating to the scope and jurisdiction of Judicial review proceedings were discussed.

37. The respondents submitted that the ex-parte’s applicant had not proved nor did he lay a basis and/or demonstrated that the decisions being challenged were irrational, unreasonable, or tainted with illegality, and therefore the orders of “certiorari” could not be issued.

38. Similarly, the Ex parte Applicant prayer for “Mandamus”, was misplaced as the Ex parte Applicant had sought to compel the performance of duty in a particular way, and with a purpose to achieve a particular outcome. That was untenable in law as this court could not usurp the mandate of the trial court and pre-emptively determine the cause of action still pending determination before courts of competent juridiction. Reliance was placed in the case of Maritime Electric Co Ltd versus General Diaries Ltd QB 227, Republic versus Judicial Service Commission ex parte Pareno (2004), Republic vs Minister of Agriculture & 2 others Exparte Equatorial Nuts Processors Limited & 3 Others (2013), and Republic Vrs Marshland and Fen District Commissioners (1910) 1KB where the parameters of granting “writ orders” were discussed.

39. The 1st and 2nd Respondent thus urged this court to dismiss the application under determination with costs.

c. The 1st and 2nd Interested Parties Submissions. 40. The 1st and 2nd interested parties vide their submissions dated 14th June 2024 and 28th July 2024 respectively stated that the Ex parte applicant had not fulfilled the prerequisites provided for under order 53 of the Civil Procedure Rules 2010 as read with Section 9(2) of the law reform Act, Cap 26, and therefore was improperly and prematurely before the court.

41. . The 1st interested party did give a brief synopsis of all the pending claims before the Magistrate/High court and observed as follow;a.Machakos CMCC No 408 of 2019;Liability was determined at 30% against the 3rd interested party and 70% against the Ex parte Applicant. An award of Kshs 1,351,060/= was issued, less 30% liability plus costs and Interest. The decree issued was not challenged on Appeal.b.Macahkos CMCC No 429 of 2019;he 3rd Interested party filed this suit seeking material damage against the Ex parte Applicant, who subsequently enjoined the 1st and 2nd interested parties as 3rd parties therein. The suit was not proved on a balance of probability and was dismissed.(c)Machakos CMCC No E277 of 2022;This suit was filed by the Ex parte Applicant seeking to compel the 1st and 2nd interested party to indemnify him and settle the decree issued in the “primary suit”. The suit was heard on merit and dismissed with costs. The Ex parte Applicant sought for stay of the “primary decree” pending appeal and his application was declined. The suit was still pending determination.(d)Machakos HCCA No E053 of 2023The Ex parte Applicant filed this Appeal against the ruling delivered in the declaratory suit, refusing to grant him orders of stay of the “primary decree”. His application was once again dismissed, hence this Judicial Review Application.

42. It was clear that the Ex parte Applicant had not proved that they had acted in an illegal, irrational, and/or committed procedural impropriety. Secondly, they were not “public officers” and/or a “public body”, and could not attract the “writ of Mandamus”, to compel them to act in a particular manner. Reliance was placed in the case of Republic Vrs Kenya Vision 2030 Delivery Board & Another, Ex parte Eng. Judah Abekah (2015) eklr.

43. The Ex parte Applicant therefore had not established grounds to warrant granting of any of the “writ orders” sought. Reliance was placed in the case of Municipal council of Mombasa Vrs Republic, Umoja Consultants, Nairobi Appeal No. 185 of 2007(2002)eklr & Republic Vrs Town clerk, Kisumu Municipality, Ex parte East African Engineering Consultants, (2007) 2EA, 441.

44. The 1st and 2nd interested parties thus urged the court to dismiss this application under consideration with costs.

c. The 3rd Interest Party Submissions. 45. The 3rd Interested party also filed and relied on his submissions dated 4th June 2024. He reiterated the background of this dispute and outlined the history of all the suits filed before the Machakos Magistrate’s Court and the High Court.

46. The 3rd interested party urged the court to note that the “primary suit” was determined in his favour and no Appeal had been filed to challenge the said decree. He later filed Machakos CMCC No 429 of 2019, claiming material damage, which suit was still pending.

47. The Ex parte Applicant had also filed a declaratory suit, to wit Machakos CMCC No 277 of 2023, which was yet to be determined on merit and Machakos HCCA No E053 of 2023, which had been abandoned after the said court had refused to grant him orders of stay of execution, which he had sought for.

48. Order 53, Rule 2 of the Civil Procedure Rules, provided that leave would not be granted to any party to apply for an order of certiorari to challenge any judgment, order, decree, conviction, or other proceedings unless it was filed within six months after the date of the proceedings or such shorter time as may be prescribed by the Act.

49. The judgement sought to be “quashed” was delivered in the “primary suit” on 20th June 2022, while the Ex parte Applicant had filed this Application on 10th July 2023, after time statutorily allowed had lapsed. To that extent, the application filed was incompetent for being filed out of time and without leave of court.

50. The 3rd Interested party, also urged the court to note that, what the Ex parte Applicant was seeking indirectly through the back door, were orders of stay of execution of the “primary decree”, which issue had been determined, by other courts of competent jurisdiction. To that extent, the issues raised herein offended the provisions of Section 7 of the Civil Procedure Act and were Res judicata.

51. The 3rd Interested Party further urged the court to find that, in judicial review proceedings, the role of the court was “supervisory”, however, where the process followed by the decision maker was proper and the decision arrived at within the confines of the law, the “supervising court” would not interfere with such decision.

52. All the decisions challenged were made in the right forum, were not illegal, or irrational, nor were they made based on procedural impropriety. The application before the court was therefore incompetent and had to fail. Reliance was placed in the case of; Republic Vrs Ethics & Anti-Corruption Commission; Ex parte Nairobi City County Assembly & 13 others (2019) eklr.

53. The 3rd Interested party urged the court to find that the ex-parte Applicant had failed to establish cogent grounds to support his Application as established in the Uganda case of ( Pastoli- supra) and urged the court to dismiss the said Application with attended costs.

C. Determination 54. I have considered the application, the grounds made in support, its verifying and supporting affidavit. I have also considered the various grounds of opposition, Replying affidavits filed in opposing this Application, and submissions filed by both parties.

55. The issues, which arise for determination are;a.Whether a declaration should be issued that the Ex parte Applicant had a valid and comprehensive insurance policy No 503/0910/17 issued by the 2nd Interested party and that they be compelled to indemnify him against any claim arising from the accident involving the 1st suit Motor vehicle.b.Whether the court should issue the “writs of “certiorari” to quash the various rulings and Judgement issued in Machakos CMCC No 408 of 2019, Machakos CMCC No 429 of 2019, and Machakos High Court Appeal No E053 of 2023. c.Whether the court should issue the “writ of Mandamus” to compel the 1st and 2nd interested parties to honour the insurance contract and indemnify the 3rd Interested Parties for injuries sustained and damages suffered to the 2ns suit Motor vehicle.d.Who should bear the costs of this suit?

Issue 1; Declaratory Orders in Judicial Review Proceedings. 56. In our legal parlance and jurisprudence, judicial review is founded under the provisions of Order 53 Rules 1 to 7 of the Civil Procedures Rules 2010 where the prerogative orders are issued. Primarily, it is anchored on the provisions of Sections 8 and 9 of the Law Reform Act Cap 26 of the Laws of Kenya where the Provisions of Order 53 of the Civil Procedure Rules 2010 were borrowed from. See Farmers Bus Services – Versus - Transport Licensing Appeals Tribunal (1975) E.A. 523.

57. Upon the promulgation of the Constitution of Kenya in 2010 Article 47 of the Constitution of Kenya introduced the provisions of Fair Administration of justice and later on the legislation of “the Fair Administration of Action Act of 2012” which is the statutory framework governing judicial review and the Administrative law in Kenya currently.

58. The court, when handling judicial review Applications filed under provisions of Order 53 of the Civil procedure rules, is only concerned with reviewing, not the merits of the decision in respect of which the application had been filed, but the decision-making process itself. This was to ensure that the applicant was fairly treated by those in authority and decisions complained of not tainted with illegality, irrationality, and procedural impropriety.

59. It is therefore my finding that under these special proceedings, the court does not have the jurisdiction to determine commercial disputes between private individuals and such matters are best left under the preview of the civil courts for determination. See Pastoli Vrs Kabale District Local Government council & others (2008) 2EA 300 &in SGS Kenya Limited v Energy Regulatory Commission & 2 others SC Petition No 2 of 2019 [2020] eKLR

60. The declaratory orders sought herein is therefore misplaced and are best litigated in the pending declaratory suit file by the Ex parte Applicant, to wit; Machakos CMCC No E277 of 2022.

Issue II “Whether the court should issue “writ of certiorari” . 61. The prerogative writs of “Certiorari” derive from the Latin word “Certiorari” which means to be certified, informed, appraised or shown. It requires that the proceedings of an inferior tribunal be transferred to the High Court and examined for validity and if illegal or unmerited, the same be quashed. From the Provisions of Order 53 of the Civil Procedure Rules the Applicant ought to move court within a period of six (6) months from the time the order, decree, judgment, conviction or other proceeding was made.

62. Further, circumstances under which orders of Judicial Review can be issued were elaborated by Justice Kasule in the Uganda case of Pastoli v Kabale District Local Government Canal & others (2008) 2EA 300 at pages 300-304. “In order to succeed in an application for Judicial Review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality, and procedural impropriety.i.Illegality, is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provision of a law or its principles are instances of illegality----ii.Irrationality is when there is such gross unreasonableness in the decision taken or act done that no reasonable authority, addressing itself to the facts and the law before it would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.iii.Procedural impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of making a decision. The unfairness may be in non-observance of the Rules of Natural Justice to act or to act with procedural fairness towards one to be affected by the decision – it may also involve failure to adhere to and observe procedural rules expressly laid down in a statute or legislature instrument by which such authority exercises jurisdiction to decide. (Al-Mehidswi…v…Secretary of State for the Housing Department (1990) AC 876”.

63. The judgment in Machakos CMCC No 408 of 2019 was delivered on 30th June 2022. This was more than one year before these proceedings were instituted. By virtue of Order 53 Rule 2 of the Civil Procedure Rules, the prayers challenging the proceedings and the said judgment issued in Machakos CMCC No 408 of 2019 are time-barred. Furthermore, it has been alleged but not proved that all the proceedings in the Magistrate Court and High Court are tainted with illegality, irrationality, or procedural impropriety.

64. Secondly, the Ex parte Applicant has all along been represented by counsel in all the matters concluded and/or pending before the Magistrate Court and High Court. He cannot be heard to allege that he was condemned unheard and where there might have been a procedural lapse, the appropriate cause of action would have been to seek an order of review in the said concern file and/or to Appeal against the decision made to the Appellate court.

65. The central question in dispute herein arises from the alleged failure on the part of the 1st and 2nd interested parties to uphold contractual obligations and indemnify the Ex parte Applicant. That issue is best determined in the declaratory suit filed which is still pending determination, to wit, Machakos CMCC No 277 of 2022.

66. The prayers to quash proceedings in Machakos CMCC No 429 of 2019 and Machakos HCCA No E053 of 2023, therefore fails as it has not been proved that there has been any impropriety in the said proceedings, especially with regards to the “decision-making process”.

Issue III Whether the court should issue the “writ of Mandamus” 67. In the case of Republic vs Principal Secretary, Ministry of Internal Security & Another ex parte Schon Noorani & Another [2018] e KLR Mativo J. espoused the principles of an order of mandamus and stated as follows;“Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. vs. Canada (Attorney General), [23] and, was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration).[24] The eight factors that must be present for the writ to issue are:-(i)There must be a public legal duty to act;(ii)The duty must be owed to the Applicants;(iii)There must be a clear right to the performance of that duty, meaning that:a.The Applicants have satisfied all conditions precedent; andb.There must have been:i.A prior demand for performance;ii.A reasonable time to comply with the demand, unless there was outright refusal; andiii.An express refusal, or an implied refusal through unreasonable delay;iv.No other adequate remedy is available to the Applicants;v.The Order sought must be of some practical value or effect;vi.There is no equitable bar to the relief sought;vii.On a balance of convenience, mandamus should lie

68. The court of Appeal in the case of in Republic vs Kenya National Examinations Council Ex parte Gathenji and 9 Others, [1997] e KLR, also had this to say as they reflected on this issue:“The next issue we must deal with is this: What is the scope and efficacy of an ORDER OF MANDAMUS? Once again we turn to HALSBURY’S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89. That learned treatise says:-“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly, it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.”At paragraph 90 headed “the mandate” it is stated:“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed….”

69. The “writ of Mandamus” as discussed above compels the performance of a public duty, imposed on a person, or inferior tribunal by virtue of statutory obligation. It is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The 1st and 2nd Interested parties are not “public officials/ public body”.

70. The Ex parte applicant is therefore misguided in seeking this “writ of Mandamus” as it is inapplicable to the circumstances herein. What he seeks to enforce are “private contractual rights”, and he must be sent back to litigate at the right court.

Issue iv Costs 71. Costs follow the event. The respondents and interested parties have filed pleadings and submissions in this suit. Their counsels have also attended court and thus are deserving of costs as approved by Section 27 of the Civil Procedure Act.

72. Be that as it may, the court notes from the pleading filed that the genesis of the Ex parte Applicant problems has been caused by the 1st Interested party, who received premiums on behalf of the 2nd interested party, but failed to remit the same, resulting in the 2nd interested party “repudiating” the said policy and leaving the Ex parte Applicant high and dry when in need.

73. The 1st Interested party is therefore before this court with unclean hands in equity and cannot under the circumstances benefit from the order of costs granted to the other parties.

C. Determination 74. The upshot is that the Ex parte applicants' Notice of Motion dated 6th July 2023 lacks merit and the same is dismissed with costs. Specifically awarded to the 1st and 2nd Respondents and the 2nd and 3rd Interested party respectively.

75. The 4th Interested party did not actively participate in these proceedings and is not awarded costs.

76. It is so Ordered.

JUDGEMENT WRITTEN, DATED, AND SIGNED AT MARSABIT THIS 31ST DAY OF JANUARY 2025. FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 31st day of Janauary, 2025. In the presence of;No appearance for PetitionerNo appearance for 1st & 2nd RespondentsNo appearance for 1stInterested PartyNo appearance for 2nd Interested PartyNo appearance for 3rd Interested PartyNo appearance for 4th Interested PartyJabo Court Assistant