[2020] KEHC 5745 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. 108 OF 2020

IN THE MATTER OF AN APPLICATION FOR LEAVE FOR

JUDICIAL REVIEW ORDERS OF MANDAMUS

BETWEEN

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

VERSUS

HON. MOSES AKARANGA...........................................................................1ST RESPONDENT

VIHIGA COUNTY GOVERNMENT............................................................2ND RESPONDENT

CHIEF OFFICER FINANCE,VIHIGA COUNTY GOVERNMENT.......3RD RESPONDENT

COUNTY EXECUTIVE MEMBER FINANCE

VIHIGA COUNTY GOVERNMENT..........................................................4TH RESPONDENT

EX-PARTE :AGN KAMAU ADVOCATES

RULING

The Application

1. AGN Kamau Advocates, the ex parte Applicant herein, has moved this Court in an application brought by way of Chamber Summons dated 19th May 2020, wherein it is seeking leave to apply for an order of mandamus to compel the Respondents to pay to it the sum of Kshs. 1,119,506. 05/=, being payment for the Advocate-Client Bill of Costs as taxed by the Deputy Registrar, Nairobi Judicial Review Division on the 27th November, 2019 in respect of Nairobi Judicial Review Misc. No. 35 of 2019(formerlyNairobi Judicial Review No. 513 of 2016). The ex parte Applicant also sought an order that the costs of the application be provided for.

2. The said application is supported by a statutory statement dated 19th May 2020, and a verifying affidavit sworn on the same date by Allan George Njogu Kamau,the ex parte Applicant’s proprietor. The main ground for the application is that the Applicant offered his legal services to the 1st Respondent in being Nairobi Judicial Review Case No. 513 of 2016,when the 1st Respondent was Governor of Vihiga County, in relation to proceedings relation to summons issued to him by Senate. However, that during the pendency of the matter in court the 1st Respondent ceased to occupy the position of the Governor of Vihiga County, and the said Judicial Review proceedings was marked as withdrawn

3. The ex parte Applicant states that 1st Respondent thereafter failed to pay its legal fees, necessitating the filing of a Bill of Costs which was taxed on the 27th November, 2019 at a sum of Kshs. 1,119,506. 05/= and a certificate of taxation issued on the 4th December, 2019. That when warrants of sale and attachment were issued as against the 1st Respondent, he directed the ex-parte Applicant to demand payment of the said sum from the 2nd Respondent as it exists in perpetuity and he had been sued as the County Chief Executive arising out of a chain of events commenced and executed by the 2nd Respondent.

4. Accordingly, that the said Certificate of taxation was therefore forwarded to the 2nd Respondent who has failed to settle the taxed sum. The ex parte Applicant further states that the 3rd and 4th Respondents as the accounting officers of the 2nd Respondent are under a public duty to ensure that the 1st and 2nd Respondents fulfills their legal obligations without fail.

5. The ex parte Applicant annexed copies of the pleadings filed and orders issued in Nairobi Judicial Review Case No. 513 of 2016, as well as the Advocates-Clients Bill of Costs and Certificate of Taxation issued to it against the 1st Respondent inNairobi Judicial Review Misc Appl. No. 35 of 2019. Copies of letter forwarding the certificate of taxation to the Respondents for purposes of payment were also annexed.

The Determination

6. I have considered the application dated 19th May 2020 and am alive to the provisions of Order 53 Rule 1 of the Civil Procedure Rules, which provides that no application for judicial review orders should be made unless leave of the court was sought and granted. The main reason for the leave as explained by Waki J. (as he then was), in Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others,Mombasa HCMCA No. 384 of 1996,is to ensure that an applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration.

7. It is also trite that in an application for leave such as the present one, the Court ought not to delve deeply into the arguments of the parties, but should make cursory perusal of the evidence before court and make the decision as to whether an applicant’s case is sufficiently meritorious to justify leave.

8. In the present application, the ex parte Applicant has provided evidence of a costs taxed in his favour against the 1st Respondent, and of demand made of payment of the said sum from the Respondents. I note that the said order of payment of costs is made against the 1st Respondent, who is no longer a Governor, and that the ex parte Applicant has averred to, and provided evidence of attempts to execute the order against the 1st Respondent personally. The ex parte Applicant has also made arguments as to why the 2nd to 4th Respondents are under a duty to pay the said costs in the order issued against the 1st Respondent.

9. In this regard, the issue of the 2nd to 4th Respondents’ duty and liability to pay the costs is one to be decided at a substantive hearing, and not at this stage. To this extent I find that the ex parte Applicant has met the threshold of an arguable case, and is therefore entitled to the leave sought to commence judicial review proceedings for mandamus against the Respondent.

The Orders:

10. In the premises I direct and orders as follows:

I.Theex parteApplicant isgranted leave toapply for an order of Mandamus to compel the Respondents to pay to the ex-parte Applicant the sum ofKshs. 1,119,506. 05/=being payment for the Advocate-Client Bill of Costs as taxed by the Deputy Registrar, Nairobi Judicial Review Division on the 27th November, 2019 in Nairobi Judicial Review Misc. No. 35 of 2019 .

II.Thecosts of the Chamber Summons dated 19th May 2020 shall be in the cause.

III. The Applicant shall file and serve the Respondent with the substantive Notice of Motion and submissions thereon, together witha copy of this ruling, and a mention notice within twenty-one (21) daysof today’s date.

IV. Upon being served with the said pleadings and documents, the Respondents shall be required to file its responses to, and submissions on the substantive Notice of Motion application within thirty (30) days from the date of service.

V. This matter shall be mentioned on15thJuly 2020, for further directions.

VI. 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 substantive Notice of Motion on the basis of the electronic copies of the pleadings and the written submissions filed by the parties..

VII.The parties shall file and avail their pleadings, applications and written submissions electronically, by sending them to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comwith copies to asunachristine51@gmail.com.,and shall also provide electronic copies thereof in word format.

VIII.The electronic copies of pleadings and documents sent by the parties shall be clearly and correctly titled to indicate the J.R Case Number, the name of the Party sending it (that is whether the Ex Parte Applicant, Respondent or Interested Party), and the nature of the pleading or document.

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 send the respective affidavits of service by way of electronic mail to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comwith copies toasunachristine51@gmail.com.

XI. The Deputy Registrar of the Judicial Review Division shall send a copy of this ruling and the extracted orders to the ex parte Applicant by electronic mail by close of business on Friday, 22nd May 2020.

XII.The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for mention on 15thJuly 2020,and bring it to the attention of a Judge in the Division on that date for directions.

XIII.Parties shall be at liberty to apply.

11. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 22nd DAY OF MAY 2020

P. NYAMWEYA

JUDGE