[2024] KEELRC 601 (KLR)
The court found that the ex-parte applicant failed to comply with Order 53 Rule 1(2) of the Civil Procedure Act by not filing a Statutory Statement with the leave application or the substantive motion. This procedural defect is fatal to the application, rendering it incompetent. As a result, the court was...
Source-derived case information.
- Citation
- [2024] KEELRC 601 (KLR)
- Parties
- Applicant: Republic; Respondent: Secretary, County Government Of Kisumu; Respondent: Chief Finance Officer, County Government of Kisumu; Applicant: James Aggrey Mwamu
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review E041 of 2023
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- motion struck out
- Judges
- S Radido
- Legal Topics
- Judicial Review Procedure, Mandamus Orders, Government Liability, Decretal Sum Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Secretary, County Government Of Kisumu
Respondent
Chief Finance Officer, County Government of Kisumu
Respondent
James Aggrey Mwamu
Applicant
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the ex-parte applicant complied with the mandatory procedural requirements for judicial review under Order 53 Rule 1(2) of the Civil Procedure Act.
- 2 Whether the absence of a Statutory Statement renders the application incompetent.
- 3 Whether an order of mandamus can issue to compel payment of a decretal sum and taxed costs in the absence of procedural compliance.
Ratio Decidendi
The court found that the ex-parte applicant failed to comply with Order 53 Rule 1(2) of the Civil Procedure Act by not filing a Statutory Statement with the leave application or the substantive motion. This procedural defect is fatal to the application, rendering it incompetent. As a result, the court was constrained to strike out the motion, regardless of the merits of the underlying claim for payment of the decretal sum and costs. The absence of participation by the respondents did not cure the procedural non-compliance. The court emphasized that strict adherence to procedural requirements is necessary in judicial review proceedings, and failure to do so deprives the court of...
Court Disposition
motion struck out
Orders
- The motion dated is struck out for incompetence due to failure to comply with Order 53 Rule 1(2) of the Civil Procedure Act.
- No order as to costs, as the respondents did not participate in the proceedings.
Full Case Text
Judgment text and source record
35 paragraphs
Republic v Secretary, County Government of Kisumu & another; Mwamu (Exparte) (Judicial Review E041 of 2023) [2024] KEELRC 601 (KLR) (13 March 2024) (Judgment)
Neutral citation: [2024] KEELRC 601 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Judicial Review E041 of 2023
S Radido, J
March 13, 2024
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS AND PROHIBITION AND IN THE MATTER OF JAMES AGGREY MWAMU AND IN THE MATTER OF THE KISUMU COUNTY GOVERNMENT AND IN THE MATTER OF THE DECISION BY JUSTICE STEPHEN RADIDO ON THE 1st OCTOBER 2023 AND IN THE MATTER OF CLAIM NO. 30 OF 2020 AND IN THE MATTER OF THE COUNTY GOVERNMENTS ACT AND THE RULES THEREOF AND IN THE MATTER OF ARTICLES 1, 2, 3(1), 10, 12(1), 19, 20, 21, 22, 23(1) & (3), 43, 47(1), 48, 160(1), 165(3)(b) AND 258(1) OF THE CONSTITUTION OF KENYA, 2010 AND
IN THE MATTER OF RULES 11, 12, 13, 20 AND 21 OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES, 2006)
Between
Republic
Applicant
and
Secretary, County Government Of Kisumu
1st Respondent
Chief Finance Officer, County Government of Kisumu
2nd Respondent
and
James Aggrey Mwamu
Exparte
Judgment
1. The Court granted leave to James Aggrey Mwamu (ex-parte applicant) to commence judicial review proceedings against the Secretary, County Government of Kisumu and Chief Officer, Finance, County Government of Kisumu (the Respondents) on 30 November 2023.
2. The proceedings were commenced on 15 December 2023.
3. Despite service of the Motion on 23 January 2024, the Respondents did not bother to respond to the application (affidavit of service was filed on 6 February 2024).
4. The ex-parte applicant filed his submissions on 26 February 2024.
5. The Court has considered the Motion, supporting affidavit and submissions.
6. It is not in dispute that the Court delivered a judgment on 1 February 2023, awarding the ex-parte applicant Kshs 1,470,000/- in Cause No. 30 of 2020, James Aggrey Mwamu v County Government of Kisumu.
7. A Certificate of Order against the County Government under section 21(1) of the Government Proceedings Act was issued on 1 February 2023, and it was served upon the County Government.
8. The ex-parte applicant thereafter caused his Bill of Costs to be taxed at Kshs 303,745/- and a Certificate of Costs was issued on 11 April 2023.
9. The ex-parte applicant now seeks an order of mandamus compelling the Respondents to settle the decretal sum together with the costs.
10. Despite the grant of leave, the Court has relooked at the leave application and the instant Motion.
11. The ex-parte applicant did not comply with Order 53 Rule 1(2) of the Civil Procedure Act which requires an ex-parte applicant to file together with the leave application a copy of a Statutory Statement setting out the name and description of the applicant, the reliefs sought and the grounds for seeking such relief.
12. The Statutory Statement is also missing in the instant Motion and the Court is constrained to find the Motion incompetent.
Conclusion and Orders 13. The Motion dated is struck out with no order on costs, since the Respondents did not participate in the proceedings.
DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 13TH DAY OF MARCH 2024. RADIDO STEPHEN, MCIArbJUDGEAppearancesFor ex-parte applicant Mwamu & Co. AdvocatesRespondents did not participateCourt Assistant Chemwolo