https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4117

## **REPUBLIC OF KENYA** ## **IN THE ENVIRONMENT AND LAND COURT AT GARISSA** ## **JUDICIAL REVIEW MISCELLANEOUS APPLICATION NO. E001 OF 2026** ## **IN THE MATTER OF AN APPLICATION FOR LEAVE TO COMMENCE JUDICIAL REVIEW PROCEEDINGS PURSUANT TO ORDER 53 RULE 1 OF THE CIVIL PROCEDURE RULES** ## **AND** ## **IN THE MATTER OF SECTION 21 OF THE GOVERNMENT PROCEEDINGS ACT** ## **BETWEEN** ## **REPUBLIC…………………………………………………………………….APPLICANT** ## **AND** ## **THE COUNTY GOVERNMENT OF WAJIR…………………………..RESPONDENT** ## **EX PARTE APPLICANT…………………………………………ABDULLAHI, GITARI & ODHIAMBO ADVOCATES LLP** ## **RULING** **Introduction** 1. Before the Court is the Ex Parte Applicant’s Chamber Summons dated May 5, 2026, expressed to be brought under Order 53 Rule 1 of the Civil Procedure Rules, Section 1A, 1B & 3A of the Civil Procedure Act and all other enabling provisions of the law. The Ex Parte Applicant seeks leave to apply for an order of mandamus to compel the Respondent to: *forthwith satisfy and pay to the Ex parte Applicant the decretal sum of Kenya Shillings Twelve Million Seven Hundred Sixty Three Thousand Two Hundred and Twenty Seven (KES 12,763,227.00/=) together with accrued interest at the rate of fourteen percent (14%) per annum from the 9th day of December 2025 untill (sic) payment in full*. 1. The Ex Parte Applicant also prays for such further and other reliefs the Honorable Court may deem just and expedient to grant, together with costs. The application is supported by the Statement of Facts dated May 5, 2026, the Verifying Affidavit of Abdullahi Mohamed Hassan, sworn on May 5, 2026, and the annexures thereto. 2. At this stage, the Court is not called upon to conclusively determine the merits of the intended judicial review proceedings. The purpose of leave under Order 53, as I understand it, is to filter out frivolous, vexatious, or hopeless claims and to permit only those matters that disclose an arguable case fit for further consideration to proceed to substantive hearing. The Court must therefore undertake only a cautious and cursory evaluation of the material placed before it and must avoid making definitive findings that may embarrass the inter partes hearing. See **Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996.** 3. Having considered the Chamber Summons, the Statement of Facts, the Verifying Affidavit and the annexed material, I am satisfied, on a prima facie basis only, that the Ex Parte Applicant has disclosed an arguable case for mandamus. Enforcing payment of a decretal sum premised on a judgment of the court against a public entity, without more, constitutes an arguable case for an order of Mandamus. 4. The Applicant avers and has demonstrated compliance with the mandatory requirement of section 21 of the Government Proceedings Act, CAP 40, Laws of Kenya. 5. Granting the Ex Parte Applicant leave to file an application for mandamus becomes even more compelling where parties have consented to payment of the decretal sum and recorded a consent, which has been adopted as an order of court. To this end, the Consent of the Parties dated October 27, 2025, and the Decree of this court issued on January 21, 2026, adopting the said consent, have been annexed to the Chamber Summons Application dated May 5, 2026. 6. Consequently, on the material before me, I discern that the application has been filed timeously and it does not, on its face, disclose any obvious statutory or procedural impediment that would persuade me to decline the application for leave as prayed. 7. Accordingly, and without prejudging the merits of the substantive motion, I find the Chamber Summons May 5, 2026 merited, and I do direct as follows: ## **Disposition** 1. Leave is hereby granted to the Ex Parte Applicant to file and serve a substantive Notice of Motion for an order of mandamus in the terms substantially set out in the Chamber Summons dated May 5, 2026. 2. The substantive Notice of Motion shall be filed within twenty-one (21) days from the date hereof and shall be accompanied by the Statement, Verifying Affidavit and all annexures already filed, together with such further affidavit as may be necessary. 3. The Ex Parte Applicant shall serve the substantive Notice of Motion, the Chamber Summons, the Statement of Facts, the Verifying Affidavit, the annexures, this Ruling and a mention notice upon the Respondent within seven (7) days of filing the substantive Notice of Motion. 4. The Respondent shall file and serve its replying affidavit, grounds of opposition and/or preliminary objection, if any, within fourteen (14) days of service. 5. The Ex Parte Applicant shall be at liberty to file and serve a supplementary affidavit and written submissions within seven (7) days of service of the Respondent’s response. 6. The Respondent shall file and serve its written submissions within seven (7) days of service of the Ex Parte Applicant’s submissions. 7. This matter shall be mentioned on 22/9/2026 for confirmation of compliance and for further directions. 8. Costs of the Chamber Summons shall abide the outcome of the substantive Notice of Motion. It is so ordered. DATED, SIGNED AND DELIVERED AT GARISSA THIS 1STDAY OF JULY 2026. DR. OMONDI R. OWINO, FCIArb ELC JUDGE DELIVERED VIRTUALLY ON THE TEAMS PLATFORM IN THE PRESENCE OF: MR LAGAT COUNSEL FOR EX PARTE APPLICANT MR DABAR MOHAMED COURT ASSISTANT