[2023] KEHC 23106 (KLR)

Wang'endo & another v County Government of Nairobi (Judicial Review Application E035 of 2023) [2023] KEHC 23106 (KLR) (Judicial Review) (3 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23106 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E035 of 2023

JM Chigiti, J

October 3, 2023

Between

Jane Nyaguthii Wang'Endo

1st Applicant

Winnie Nyakio Wang'endo (Suing through her appointed Attorney Jane Nyaguthii Wang'Endo)

2nd Applicant

and

The County Government Of Nairobi

Respondent

Ruling

1. By a Chamber Summon application dated March 6, 2023‑‑under Order 53 Rule (1), (2), (3), and (4) of the Civil Procedure Rules, 2010; Section 8 (2) of the Law Reform Act, Cap 26 Laws of Kenya—the Applicants seek for orders:1. That the Applicants be granted leave to apply for an Order of Mandamus compelling the Respondent to pay the Applicants the sum of Kshs. 8,049,375. 00, with interest at court rates, on account of Judgment dated May 17, 2019 and delivered against the Respondent on May 23, 2019 in Nairobi Environment and Land Court Case Number 16 of 2003: Jane Nyaguthii Wang'endo and Another v Nairobi City Council and 4 Others together with costs taxed at Kshs. 784,702. 47 with interest.2. That costs of this application be provided for.

2. The Application was accompanied by a Statutory Statement, and a Verifying Affidavit sworn by the 1st Applicant; with all evenly dated. The Application is anchored on the grounds that on May 23, 2019, the Judgment of the Honourable Lady Justice Mary M. Gitumbi, dated May 17, 2019, was delivered in favour of the Applicants, in Nairobi Environment and Land Court Case Number 16 of 2003, in the following terms: “The court therefore orders the Defendant to pay the Plaintiffs exemplary damages amounting to the sum of Kshs. 5 million. In addition, the 1st Defendant is condemned to pay the Plaintiffs the special damages of KShs. 3,049,375/- plus interest at court rates… In view of the role played by the ls Defendant in creating this dispute and taking the parties through a laborious court adjudication, the court condemns the 1st Defendant to bear the costs of this suit for each of the other parties involved herein"

3. Further, that via the Ruling dated June 16, 2022 costs in Nairobi Environment and Land Court Case Number 166 of 2003 were taxed by the Honourable Diana Orago, then a Deputy Registrar, at K.Shs. 784,702. 47; and that no appeal / reference has been preferred against the above noted Judgment, and Taxation, and the statutory timelines within which the Respondent is required to do so have since lapsed.

4. Notably, that the Respondent was also served with the requisite statutory notice as prescribed by Section 21 of the Government Proceedings Act; and that the Applicants are precluded by the provisions of the Government Proceedings Act from applying the ordinary execution process against the Respondent.

5. However, that despite compliance with provisions of Government Proceedings Act, the Respondent has nonetheless refused and/or neglected to settle the sums due to the Applicants as per the Decree and Certificate of Taxation of the Environment and Land Court.

6. The Applicants are apprehensive that their Judgment and Decree shall be rendered superfluous, and seek the aid of this Honourable Court to perfect the Judgment and Decree of the Honourable Lady Justice Mary M. Gitumbi.

7. The Applicants filed written submissions dated July 18, 2023 wherein it was submitted that the Applicants had consistently followed up with the Respondents to secure satisfaction of the decree, but all in vain.

8. Particularly, it was submitted that the certificate prescribed Section 21(2) of the Government Proceedings Act was issued to the Respondent by the Applicants.

9. In response to the Application, the Respondents have only filed a notice of appointment dated 19th May, 2023 through their advocates Messr Abraham Gitonga Advocates.

10. After considering the Application, annexures, and submission, I find the issue being: Whether the Application for leave to institute Judicial proceedings is merited?

11. It is a requirement of the law under Order 53 Rule 1 of the Civil Procedure Rules 2010, that an Applicant must seek leave to institute substantive judicial review proceedings.

12. Leave is meant to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless; to ensure that the Applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration; to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error; and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived. This reason for leave was discussed in the case of Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996.

13. The Learned Judge, in the above case, further held that leave may only be granted if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the Applicant; the test being whether there is a case fit for further investigation at a full inter parties hearing of the substantive application for judicial review. Granting of leave to file for judicial review is an exercise of the court’s discretion, but as always it has to be exercised judiciously.

14. Upon a cursory perusal of the evidence before court, and without delving into the arguments by the Applicants it is my considered view that the case is sufficiently meritorious to justify leave.

Disposition 15. The Applicants have demonstrated a prima facie case.

Orderi.The Chamber Summon dated March 6, 2023 is allowed.ii.The Ex-Parte Applicant shall file and serve the substantive Notice of Motion within 7 days.iii.The Respondent shall file and serve their responses, if any, within 14 days of service.iv.The Ex-parte Applicant shall thereafter file and serve their submissions within 7 days of the date of service.v.Respondent shall file and serve their submissions within 7 days of the date of service of the Applicants’ submissions.vi.The matter will be mentioned on December 6, 2023 to confirm compliance.

It is so ordered.

Dated, signed and delivered this 3rdday of October, 2023. ........................J. CHIGITI (SC)JUDGE