[2022] KEHC 12596 (KLR)

Republic v County Secretary, Tharaka Nithi County & 2 others; Mugwetwa (Exparte Applicant) (Miscellaneous Civil Application E002 of 2022) [2022] KEHC 12596 (KLR) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12596 (KLR)

Republic of Kenya

In the High Court at Chuka

Miscellaneous Civil Application E002 of 2022

LW Gitari, J

July 19, 2022

In The Matter Of Elc Constitutional Petition No. 01 of 2019 Mutegi Mugwetwa Versus Chief Officer Land & Physical Planning Housing Urban Development & 4 Others

Between

Republic

Applicant

and

County Secretary Tharaka Nithi County

1st Respondent

Chief Officer Finance/County Treasurer, Tharaka Nithi County

2nd Respondent

County Government of Tharaka Nithi

3rd Respondent

and

Mutegi Mugwetwa

Exparte Applicant

Ruling

1. These proceedings were instituted videthe notice of motion application dated January 17, 2022 which seeks for the following orders:a.That an order of mandamusnow be issued and the same be directed to the County Secretary Tharaka Nithi County, Tharaka Nithi County and the Chief Officer, Finance/County Treasurer, Tharaka Nithi County.b.That the County Secretary Tharaka Nithi County, the Chief Officer, Finance/County Treasurer Tharaka Nithi County, Tharaka Nithi County shall comply by paying to the applicant within 7 days the sum of Kshs 6,073,125. 00/= being the decretal sum in respect of ELC Constitutional Petition No 01 of 2019. c.That in default, notice to show cause be issued against the County Secretary, Tharaka Nithi County and the Chief Officer, Finance/County Treasurer Tharaka Nithi County for them to show cause why they should not be cited for contempt of court.d.That the cost of this application be provided for.

2. The respondents raised a preliminary objection vide a notice dated March 7, 2022 in which they urged this court to strike out the suit by the ex-parte applicant on grounds that:a.Under order 53 rule 1 of the Civil Procedure Rules, an application for an order of mandamus, prohibition and certiorari can only be made with leave of the court.b.The application herein was filed without leave and should therefore be dismissed.

3. This court ordered that the preliminary objection be heard first, and the parties were directed to canvass the same by way of written submissions.

Respondents’ Submissions 4. The respondents filed their written submissions jointly on May 11, 2022. It was their submission that order 53 rule 1 of the Civil Procedure Rules requires that an application for mandamus, prohibition, and certiorari can only be made with leave of the court. They relied on the cases of Republic v County Council of Kwale & anotherex-parteKondo & 57 others [1998] 1 KLR (E&L) and Secretary County Government of Busia v Antaf Company Limited [2021] eKLR and urged this court to dismiss the application contending that the requirement for leave is mandatory.

Applicant’s Submissions 5. On his part, the applicant filed his written submissions on February 18, 2022.

6. The applicant relies on the case of James Gacheru Kariuki & 22 othersvKiambu County Assembly & 3 others [2017] eKLR and submits that order 53 of the Civil Procedure Rules is no longer a good law in view of the constitutional developments under article 22 and 23 of the Constitution. He urges the court to find that the Constitution envisages a simple but clear way to access without prolonging administrative injustice like seeking leave of the court as a pre-requisite condition to access justice.

Analysis 7. The circumstances in which a preliminary objection may be raised was explained by the Court of Appeal in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696, as follows:“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

8. The effect of a sucessful preliminary objection is to render any further proceedings before the court impossible or unnecessary.

9. A preliminary objection cannot therefore be raised if any fact requires to be ascertained. In the case of Oraro v Mbaja [2005] 1 KLR141, the court held that any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. The Court of Appeal also stated in Mukisa Biscuit Company v West End Distributors Ltd(supra) that a preliminary objection cannot be raised if what is sought is the exercise of judicial discretion.

10. The issues for determination herein therefore are whether the grounds raised in the respondent’s preliminary objection raise pure points of law, and if so, whether the said preliminary objection has merit and should be upheld.

11. The applicable procedural law when it comes to applications for judicial review is order 53, rules 1 and 2 of the Civil Procedure Rules which provides that:(1)No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with this rule.(2)An application for such leave as aforesaid shall be made ex parte to a judge in chambers and shall be accompanied by –a)a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought,b)and by affidavits verifying the facts and averments that there is no other cause pending and that there have been no previous proceedings in any court between the applicant and that the cause of action relates to the appoicants named in the application. (As amended by LN 22/2020).”

12. A reading of the above provisions indicates that the requirement for leave is mandatory. The purpose of seeking leave before an application is made for judicial review orders is to shield the courts from frivolous applications, which prima facie appear to be an abuse of the court process. This has been stated in several cases among them Justice Joyce Khaminwa v Judicial Service Commission & another [2014] eKLR; Mirugi Kariuki v Attorney General [1990-1994] EA 156; and Republic v Communications Commission of Kenya & 2 othersex-parteEast Africa Television Network Ltd [2001] KLR 82. The leave at an early stage is therefore used to identify and filter out claims that are without merit thus saving judicial time.While adding his voice to requirement of parties to seek leave under order 53 Civil Procedure Rules, supra, Judge Waki, as he then was, stated in Republic v County Council of Kwale and anotherex parteKondo & 57 others [1998] 1 KLR,“A notice to the Registrar of an application under the Civil Procedure Rules is an integral part of the application for leave. It is mandatory because without it the application itself is incomplete, incompetent and cannot be proceeded with.”Where a provision is couched in mandatory terms, no order of mandamus can be competently issued by a court unless there is strict compliance with the provision. The intention of the Rules is to ensure that application for judicial review which are frivolous, vexatious, hopeless and abuse of court are eliminated at an early stage. It is also meant to ensure that the applicant only proceeds with the substantive hearing upon the court being satisfied that there is an arguable case for granting the relieve sought. The court sets out to determine whether the facts disclose a case worth being further considered and determined on merits where all the parties are involved in the substantive application for judicial review. The court exercises a special jurisdiction in judicial review to issue prerogative orders meant to supervise the functions of other bodies sub-ordinate to it. The court being the “watcher” of other institutions must guard against engaging in a process that becomes a nullity where leave is not obtained.

13. The applicant has relied on the persuasive decision in James Gacheru Kariuki & 22 others (supra) where he states that numerous decisions have held that pre-2010 Constitution leave is a pre-requisite for the court to intervene in judicial review matters but that the 2010 Constitutionenvisages a simple but clear way to access justice. It is my view that order 53 Civil Procedure Rules is still good law in view of the reasons I have given above for requiring a party to seek leave of the court.

14. The applicant herein has however not sought for the requisite leave in the application but has instead touched on the issue as one of the grounds in support of the application. Ground No 7 of the application reads:“That the respondents are yet to pay the applicant and we therefore seek leave of this court to file an application seeking the order of mandamus to compel the respondents to settle the amounts owed that is 6,073,125. 00/=.”

15. It is therefore clear from above that this application has been brought without the pre-requisite leave in terms of rule 1 of order 53 Civil Procedure Rules.

16. In his submissions, the applicant has heavily relied on the case of James Gacheru Kariuki & 22 others v Kiambu County Assembly & 3 others [2017] eKLR. He submitted that order 53 of the Civil Procedure Rules is no longer a good law in view of articles 22 and 23 of theConstitution which clothes this court with jurisdiction to hear any person aggrieved by an administrative decision.

17. On the other hand, the applicant’s notice of motion dated January 17, 2022 and filed on January 18, 2022 is expressed to have been brought under the provisions of order 53 rule 3 of the Civil Procedure Rules, 2010 which provides as follows:(1)When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.(2)The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the court and on all parties to the proceedings.(3)An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the notice of motion shall be filed before the notice is set down for hearing, and, if any person who ought to be served under the provisions of this rule has not been served, the affidavit shall state that fact and the reason why service has not been effected, and the affidavit shall be before the High Court on the hearing of the motion.(4)If on the hearing of the motion the High Court is of the opinion that any person who ought to have been served therewith has not been served, whether or not he is a person who ought to have been served under the foregoing provisions of this rule, the High Court may adjourn the hearing, in order that the notice may be served on that person, upon such terms (if any) as the court may direct.”

18. Prior to the promulgation of the current Constitution in 2010, sections 8 and 9 of the Law Reform Act and order 53 Civil Procedure Rules provided the legal basis for judicial review of administrative action based on the common law. However, article 23 of the Constitution of Kenya, 2010 bestows upon the High Court powers to grant appropriate relief which include an order for judicial review. That notwithstanding, and as noted herein above, the instant proceedings were brought pursuant to the provisions of order 53 rule 3 of the Civil Procedure Rules, 2010. Judicial review proceedings are commenced after a party moves the court for leave to file and leave is granted. See Justice Ondunga in Wilson Njuguna Gakuru v National Transport and Safety Authority & 2 others [2016] eKLR. In the case cited by the applicant, Justice Joel Ngugi stated that the matter he was dealing with was not founded under order 53 of theCivil Procedure Rules. He went on to state that under Fair Administrative Action Act parties seeking relief under the Act, it is not sufficient basis for a suit and parties seeking relief under the Act must bring judicial review proceedings under order 50 rule 1 Civil Procedure Rules.No rules have been formulated under the Fair Administrative Action Act which is the law envisaged under article 23 of theConstitution. Recourse should therefore be had to rule 53 Civil Procedure Rules and section 9 of the Law Reform Act.In my view leave is permission which is a requirement and which a party has to be granted by the court for that party to commence judicial review proceedings. An application for judicial review will therefore not be filed before leave is granted. The application for judicial review is consequent upon leave being granted.

19. In the circumstances, I opine that the preliminary objection dated March 7, 2022 has merit and should be upheld as the applicant brought the substantive judicial review application under order 53 rule 1 of the Civil Procedure Rules, 2010 without complying with the requirements under the rule.I uphold the preliminary objection and find that the application is not properly before this court. It is sturck out with costs.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 19TH DAY OF JULY, 2022. LW GITARIJUDGE