[2022] KEHC 14391 (KLR)
The court held that the application for mandamus was premature and incompetent because it was not accompanied by an order for leave to apply, as required by law. The applicant failed to annex the critical document evidencing leave, and did not file all necessary documents to support the application. The court...
Source-derived case information.
- Citation
- [2022] KEHC 14391 (KLR)
- Parties
- Applicant: Republic; Respondent: County Secretary County Government of Kisumu; Respondent: County Executive Member for Finance County Government of Kisumu; Respondent: County Government of Kisumu
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 8 of 2021
- Procedural Posture
- Judicial Review / Ruling on Application for Mandamus
- Outcome
- application struck out
- Judges
- RE Aburili
- Legal Topics
- Judicial Review, Mandamus, Leave to Apply, Public Finance Management, County Government Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
County Secretary County Government of Kisumu
Respondent
County Executive Member for Finance County Government of Kisumu
Respondent
County Government of Kisumu
Respondent
Procedural Posture
Judicial Review / Ruling on Application for Mandamus
Legal Issues
- 1 Whether the application for mandamus is competent without an order for leave annexed.
- 2 Whether failure to file necessary documents renders the application premature and incompetent.
Ratio Decidendi
The court held that the application for mandamus was premature and incompetent because it was not accompanied by an order for leave to apply, as required by law. The applicant failed to annex the critical document evidencing leave, and did not file all necessary documents to support the application. The court emphasized that it is the duty of parties to ensure all procedural requirements are met, and failure to do so renders the application fatally defective. Consequently, the application was struck out.
Court Disposition
application struck out
Orders
- The application dated 26th November 2021 is struck out with no orders as to costs.
- File closed.
Full Case Text
Judgment text and source record
28 paragraphs
Republic v County Secretary County Government of Kisumu & 2 others (Judicial Review 8 of 2021) [2022] KEHC 14391 (KLR) (21 September 2022) (Ruling)
Neutral citation: [2022] KEHC 14391 (KLR)
Republic of Kenya
In the High Court at Kisumu
Judicial Review 8 of 2021
RE Aburili, J
September 21, 2022
IN THE MATTER OF AN APPLICATION BY OTIENO, RAGOT & CO ADVOCATES AND IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY WAY OF MANDAMUS PURSUANT TO LEAVE GRANTED IN KISUMU HC MISC APPLICATION NO 123 OF 2021 AND IN THE MATTER OF SECTIONS 2, 103, 147 & 148 OF THE PUBLIC FINANCE MANAGEMENT ACT, 2012 AND IN THE MATTER OF SECTION 44 & 45 OF THE COUNTY GOVERNMENTS ACT, 2012 AND IN THE MATTER OF GOVERNMENT PROCEEDINGS ACT, CAHPTER 40, LAWS OF KENYA AND IN THE MATTER OF ARTICLES 10, 23 & 41 OF THE CONSTITUTION OF KENYA
Between
Republic
Applicant
and
County Secretary County Government of Kisumu
1st Respondent
County Executive Member for Finance County Government of Kisumu
2nd Respondent
County Government of Kisumu
3rd Respondent
Ruling
1. This application was filed on 26th November 2021 which is nearly one year ago and there is no reason why, if the leave was obtained to file the substantive motion, the substantive motion was not filed in the same file as the one for leave to apply.
2. No such order for leave to apply is annexed to the motion dated 26th November 2021.
3. It is the duty of the Parties to file all necessary and critical documents to support the cause of action as required by law.
4. This matter is similar to HC JR No E009 of 2021. Both matters have been pending for nearly one year. The applicant ought to have known what documents are necessary to inform the court to make the orders sought.
5. I find this application for mandamus which is not accompanied by an order for leave premature and incompetent.
6. The application dated 26th November 2021 is hereby struck out with no orders as to costs.
7. File closed.
8. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 21ST DAY OF SEPTEMBER, 2022R. E. ABURILIJUDGE