1. Through the Application dated 11th December 2024 the Applicants seek the following orders: -
1) That leave be granted to the Applicants herein to apply for a Judicial Review Order of CERTIORARI to quash the Judgement and Orders of the 1st Respondent dated 14th November 2024 in RBAT Appeal No, 13 of 2023 - Agnes Syokau Wambua & 146 Others -vs Retirement Benefits Authority and Another.
2) That leave be granted to the Applicants herein to apply for a Judicial Review Order of MANDAMUS compelling the 1 Respondent to determine their Appeal filed on 6th December 2023 in accordance with the Retirement Benefits Act and the Kenya Posts and Telecommunication Corporation Scheme Rules.
3) That costs of this Application be provided for.
The Applicants case;
2. Their case is advanced by Agnes Syokau Wambua, who has been authorized by the 2-147th Applicants.
3. It is their case that the Applicants were originally employees of Kenya Post and Telecommunication Corporation (KPTC). During our employment, we were under Kenya Post and Telecommunication Corporation Scheme, a non-contributory scheme, and therefore subject to the rules of the Scheme. Kenya Post and Telecommunication Corporation (KPTC) was split into three entities being Communication Commission of Kenya, Telkom Kenya Limited and Postal Corporation of Kenya.
4. It is further their case that Telposta Pension Scheme was established by Kenya Post and Telecommunication Corporation (KPTC) as part of the restructuring of Kenya Post and Telecommunication Corporation (KPTC) into the three separate entities abovementioned.
5. All the employees of Kenya Post and Telecommunication Corporation (KPTC) became members of Telposta Pension Scheme on 1st July 1997.
6. They argue that in the result the Applicants became members of Telposta Pension Scheme on the basis of being employed by Kenya Post and Telecommunication Corporation (KPTC).
7. Kenya Post and Telecommunication Corporation (KPTC) was eventually split following the enactment of the Communication of Kenya in 1998.
8. The three separate entities, Communication Commission of Kenya, Telkom Kenya Limited and Postal Corporation of Kenya, were created and became participating employers in Telposta Pension Scheme.
9. Upon being transferred to Postal Corporation of Kenya (PCK), the Applicants continued to be members of Telposta Pension Scheme.
10. In 1999, the Minister in a Legal Notice No. 154 of 1999 declared as follows: -
“...the movable and immovable property and assets specified in the schedule hereto which on the 30th June 1999 were vested in the Kenya Posts and Telecommunication Corporation shall, without further conveyance, transfer or assignment, be deemed to have been transferred and vested in the Trustees of Telposta Scheme for the purposes of discharging pension liabilities in respect of;
e) Any person who, on the 30th June 1999 was entitled to receipt of a pension from Kenya Posts and Telecommunication Corporation, Communications Commission of Kenya, the Postal Corporation of Kenya and Telkom Kenya Limited.
f) All references to the Kenya Posts and Telecommunications Corporation in any agreement or instrument relating to any property, assets, rights or obligations transferred under paragraph (a) and subsisting on 30th June 1999, shall unless the context otherwise requires be read as references to the Trustees of the Telposta Pension Scheme.”
11. It is the Applicants’ case that the transfer of movable and immovable property and assets which were vested in the Kenya Post and Telecommunication Corporation (KPTC) to the Trustees of Telposta Scheme for the purposes of discharging pension liabilities owed to them This did not render the Kenya Post and Telecommunication Corporation (KPTC) pension regulations inapplicable to us as it was aimed at facilitating the execution of our preserved rights under Rule 8 of the Kenya Information and Communications of Kenya Act, 1998, Transitional Provisions which provides as follows: -
12. Where any person whose services are transferred to the Commission, the Company, or the Corporation as the case may be, is on the vesting day, a member of any statutory or voluntary pension scheme or provident fund he shall, for purposes of this Act, continue to be governed by the same regulations under those schemes or funds as if he had not been so transferred, and for purposes of the regulations governing those schemes or funds his service with the Commission, the Company or the Corporation, as the case may be, shall be deemed to be service in the former corporation.
13. They argue that Rule 8 of the Kenya Information and Communications of Kenya Act, 1998, Transitional Provisions preserving our rights remained in operation as we continued to be members of the Telposta Pension Scheme as employees of Postal Corporation of Kenya and later to Postal Corporation of Kenya Pension Scheme when the government resolved that the three entities, Communication Commission of Kenya, Telkom Kenya Limited and Postal Corporation of Kenya, should operate separate pension schemes.
14. They strongly believe that in the circumstances they are entitled to their pension benefits being paid using the method of computation provided under the Kenya Post and Telecommunication Corporation Scheme Rules as they were deemed to be in continuous service under Kenya Post and Telecommunication Corporation.
15. Being dissatisfied with the underpayments and under computation of our pension benefits paid by the Trustees as commutation and monthly pensions, the Applicants filed two Complaints dated 25th February 2021 and 10th February 2021 to the 2nd Interested Party which were consolidated.
16. They are aggrieved that it found that the 1st Interested Party was correct in applying the Rules of the PCK Pension Scheme in the calculation of their benefits, rendered its decision dated 10th November 2023 dismissing their Complaints dated 25th February 2021 and 10th February 2021.
17. They filed an Appeal with the 1st Respondent on 6th December 2023 being RBAT Appeal No. 13 of 2023; Agnes Syokau Wambua & 146 Others -vs- Retirement Benefits Authority and Another which culminated in a decision that was rendered on 24th November 2024 wherein it dismissed the Appeal with no orders as to costs.
18. It is their case that the decision is not rationally connected to the information before it as it assumed that Rule 8 of the Kenya Information and Communications of Kenya Act, 1998, Transitional Provisions preserved our benefits whilst subjecting us to the 1st Interested Party's pension Rules.
19. They maintain that the decision was materially influenced by a wrong interpretation of Rule 8 of the Kenya Information and Communications of Kenya Act, 1998, Transitional Provisions that led it to conclude that the 1st Respondent correctly applied the Trust Deed and Rules of PCK Pension Scheme in determining our benefits.
20. the 1st Respondent acted with complete disregard to sound legal principles that are. foundational to the functionality of Transitional Provisions.
21. They are persuaded that the 1st Respondent abdicated its role to render its decision on the correct interpretation of Rule 8 of the Kenya Information and Communications of Kenya Act, 1998, Transitional Provisions.
22. The decision was made irrationally, unreasonably, procedurally unfair and disproportionate to any interest sought to be protected.
The Respondent’s case;
23. The Respondent filed grounds of opposition in opposing the application on the grounds that;
a. That the Chamber Summons Application has been overtaken by events as the Applicants’ Appeal filed on 6thDecember 2023 was determined by the 1st Respondent in RBAT Appeal No.13 0f 2023-Agnes Syokau Wambua & 146 Others-vs-Retirement Benefits Authority and Another.
b. That contrary to the Applicants’ allegation that the 1stRespondent abdicated its role to render its decision on the correct interpretation of Rule 8 of the Kenya Information and Communications of Kenya Act, 1998, Transitional Provisions; the 1st Respondent acted within its’ jurisdiction as provided under Section 48 of the Retirement Benefits Act, Cap. 197.
c. That contrary to the Applicants’ allegations the 1stRespondent followed all statutory procedures and made its decision within its jurisdiction.
d. That contrary to the Applicants’ allegations the 1stRespondent decision is rationally connected to the information before it.
e. That contrary to the Applicants’ allegations the 1stRespondent decision was procedurally fair.
f. That the Applicants’ have not shown the unreasonability, illegality, and procedural impropriety of the decision made by the 1st Respondent.
g. That the 1st Respondent’s decision was lawful, procedurally fair and regular. The Court of Appeals decision in Ex Chief Peter Odoyo Ogada is categorical regarding upholding the doctrine of separation of powers with respect to the statutory mandates of administrative bodies visa vis’ the court’s jurisdiction when determining Judicial Review. A body or organ performing statutory duties has discretion when handling matters falling within its mandate and where such a body applies its mind to constitutional requirements and reaches a rational conclusion courts should not review that decision.
h. That the application is frivolous, vexatious, hopeless and an abuse of court process.
The 1st Interested Party’s case;
24. On its part and in opposing the application, it raise the following primary grounds: -
a) The Application is incompetent, misconceived and devoid of any merit in view of its own contents together with the supporting affidavit.
b) The orders sought under the Application are untenable and are based on a grave misconception of law and fact.
c) The orders sought herein are unsustainable and are therefore unavailable to the Applicant.
d) The Application is tantamount to trifling with the Court and is an abuse of the process of this Honorable Court.
The 2nd Interested Parties case;
25. It opposes the application and argues that the Applicants, who are former employees of the Postal Corporation of Kenya (PCK) and members of the PCK Staff Pension Scheme, lodged complaints with the 2nd Interested Party regarding the computation of their pension benefits, alleging that their benefits should be calculated under the Kenya Posts and Telecommunications Corporation (hereinafter also referred to as "KPTC") Pension Scheme rules, pursuant to Rule 8 of the Third Schedule of the Kenya Information and Communications Act, 1998.
26. The 2nd Interested Party, ‘s case is that it investigated the Applicants' complaints and made a decision on 10th November 2023.
27. It arrived at a finding that indicated that the benefits were correctly computed under the PCK Pension Scheme Rules.
28. The decision did not sit well with the Applicants who appealed to the 1st Respondent in RBAT Appeal No. 130f 2023.
29. In its judgment dated 14th November, 2024, the 1st Respondent, dismissed the appeal, finding that the benefits were correctly computed under the PCK Pension Scheme rules and that Rule 8 preserved continuity of service, not specific KPTC pension benefits.
30. In its determination, the 1st Respondent stated that upon the transfer of assets and liabilities from KPTC to Telposta Pension Scheme, and subsequently from Telposta Pension Scheme to PCK Pension Scheme, the PCK Pension Scheme's Trust Deed and Rules became the most appropriate rules applicable to the Applicants' benefits.
31. It is its case that it acted within its statutory mandate as provided under the Retirement Benefits Act, Cap. 197, and adhered to all statutory procedures.
32. It maintains that the 1st Respondent's decision was rationally connected to the evidence and legal interpretation.
33. The 1st Respondent's decision was not materially influenced by a wrong interpretation of Rule 8 of the Kenta information and Communications of Kenya Act, 1998, Transitional Provisions.
34. The 1st Respondent correctly interpreted Rule 8 as a transitional provision aimed at preserving service, not at dictating which specific scheme rules should apply post-transition.
35. The 1st Respondent did not act with complete disregard to sound legal principles that are foundational to the functionality of Transitional Provisions.
36. The 1st Respondent's interpretation was consistent with the purpose of such provisions.
37. The 1st Respondent fully considered and made a clear determination regarding the application and effect of Rule 8 in its Judgement.
38. The 1st Respondent followed due process, heard all parties, and rendered a reasoned decision within its jurisdiction.
39. The 1st Respondent exercised its powers lawfully and judiciously.
40. It is no case that the Applicants' prayer for a Judicial Review Order of Mandamus compelling the 1 st Respondent to re-determine the appeal is now moot and has been overtaken by events, given that the 1 st Respondent already conclusively determined the said Appeal on 14th November 2024.
Analysis and Determination;
41. The issue for determination is whether or not the Applicants have made out a case for the grant of the orders sought.
42. Order 53 Rule 1 of the Civil Procedure Rules, provides that no Application for judicial review orders should be made unless leave of the court was sought and granted.
43. in Republic v County Council of Kwale & Another Exparte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 as follows:
“The purpose of Application for leave to apply for judicial review is firstly to eliminate at an early stage any Applications for judicial review which are either frivolous, vexatious or hopeless and secondly 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. The requirement that leave must be obtained before making an Application for judicial review is designed 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…Leave may only be granted therefore 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 interpartes hearing of the substantive Application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.
44. It is also trite that in an Application for leave, 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.
45. In Uwe Meixner & another v Attorney General [2005] eKLR, it was held that the leave of court is a prerequisite to making a substantive Application for Judicial Review with a view to filtering out frivolous Applications and the grant or refusal involves an exercise of judicial discretion and the test to be applied is whether the Applicant has an arguable case. Thus, the first step in the Judicial Review procedure involves the mandatory "leave stage." At this stage an Application for leave to bring Judicial Review proceedings must first be made. The leave stage as held by Waki J is used to identify and filter out, at an early stage, claims which may be trivial or without merit.
46. Upon a cursory look at the application and without getting into the merits of the intended case the court is satisfied that the Applicants have made out a prima facie case that calls for a deeper consideration.
Disposition;
47. The Applicants have made out a prima case that justifies the grant of the orders sought.
Order;
1) The Application is allowed.
2) The Applicants shall file and serve the substantive suit within 14 days which shall be in a separate file.
3) The Respondent and the interested parties shall file and serve their responses within 14 days of the date of service of the Application.
4) The Applicants shall thereafter file and serve submissions within 7 days of the date of service.
5) The Respondent and the interested parties shall file and serve their submissions within 7 days thereafter.
6) This file is closed.
Dated, signed and delivered at Nairobi this 17th day of March, 2026.
1) That leave be granted to the Applicants herein to apply for a Judicial Review Order of CERTIORARI to quash the Judgement and Orders of the 1st Respondent dated 14th November 2024 in RBAT Appeal No, 13 of 2023 - Agnes Syokau Wambua & 146 Others -vs Retirement Benefits Authority and Another.
2) That leave be granted to the Applicants herein to apply for a Judicial Review Order of MANDAMUS compelling the 1 Respondent to determine their Appeal filed on 6th December 2023 in accordance with the Retirement Benefits Act and the Kenya Posts and Telecommunication Corporation Scheme Rules.
3) That costs of this Application be provided for.
The Applicants case;
2. Their case is advanced by Agnes Syokau Wambua, who has been authorized by the 2-147th Applicants.
3. It is their case that the Applicants were originally employees of Kenya Post and Telecommunication Corporation (KPTC). During our employment, we were under Kenya Post and Telecommunication Corporation Scheme, a non-contributory scheme, and therefore subject to the rules of the Scheme. Kenya Post and Telecommunication Corporation (KPTC) was split into three entities being Communication Commission of Kenya, Telkom Kenya Limited and Postal Corporation of Kenya.
4. It is further their case that Telposta Pension Scheme was established by Kenya Post and Telecommunication Corporation (KPTC) as part of the restructuring of Kenya Post and Telecommunication Corporation (KPTC) into the three separate entities abovementioned.
5. All the employees of Kenya Post and Telecommunication Corporation (KPTC) became members of Telposta Pension Scheme on 1st July 1997.
6. They argue that in the result the Applicants became members of Telposta Pension Scheme on the basis of being employed by Kenya Post and Telecommunication Corporation (KPTC).
7. Kenya Post and Telecommunication Corporation (KPTC) was eventually split following the enactment of the Communication of Kenya in 1998.
8. The three separate entities, Communication Commission of Kenya, Telkom Kenya Limited and Postal Corporation of Kenya, were created and became participating employers in Telposta Pension Scheme.
9. Upon being transferred to Postal Corporation of Kenya (PCK), the Applicants continued to be members of Telposta Pension Scheme.
10. In 1999, the Minister in a Legal Notice No. 154 of 1999 declared as follows: -
“...the movable and immovable property and assets specified in the schedule hereto which on the 30th June 1999 were vested in the Kenya Posts and Telecommunication Corporation shall, without further conveyance, transfer or assignment, be deemed to have been transferred and vested in the Trustees of Telposta Scheme for the purposes of discharging pension liabilities in respect of;
e) Any person who, on the 30th June 1999 was entitled to receipt of a pension from Kenya Posts and Telecommunication Corporation, Communications Commission of Kenya, the Postal Corporation of Kenya and Telkom Kenya Limited.
f) All references to the Kenya Posts and Telecommunications Corporation in any agreement or instrument relating to any property, assets, rights or obligations transferred under paragraph (a) and subsisting on 30th June 1999, shall unless the context otherwise requires be read as references to the Trustees of the Telposta Pension Scheme.”
11. It is the Applicants’ case that the transfer of movable and immovable property and assets which were vested in the Kenya Post and Telecommunication Corporation (KPTC) to the Trustees of Telposta Scheme for the purposes of discharging pension liabilities owed to them This did not render the Kenya Post and Telecommunication Corporation (KPTC) pension regulations inapplicable to us as it was aimed at facilitating the execution of our preserved rights under Rule 8 of the Kenya Information and Communications of Kenya Act, 1998, Transitional Provisions which provides as follows: -
12. Where any person whose services are transferred to the Commission, the Company, or the Corporation as the case may be, is on the vesting day, a member of any statutory or voluntary pension scheme or provident fund he shall, for purposes of this Act, continue to be governed by the same regulations under those schemes or funds as if he had not been so transferred, and for purposes of the regulations governing those schemes or funds his service with the Commission, the Company or the Corporation, as the case may be, shall be deemed to be service in the former corporation.
13. They argue that Rule 8 of the Kenya Information and Communications of Kenya Act, 1998, Transitional Provisions preserving our rights remained in operation as we continued to be members of the Telposta Pension Scheme as employees of Postal Corporation of Kenya and later to Postal Corporation of Kenya Pension Scheme when the government resolved that the three entities, Communication Commission of Kenya, Telkom Kenya Limited and Postal Corporation of Kenya, should operate separate pension schemes.
14. They strongly believe that in the circumstances they are entitled to their pension benefits being paid using the method of computation provided under the Kenya Post and Telecommunication Corporation Scheme Rules as they were deemed to be in continuous service under Kenya Post and Telecommunication Corporation.
15. Being dissatisfied with the underpayments and under computation of our pension benefits paid by the Trustees as commutation and monthly pensions, the Applicants filed two Complaints dated 25th February 2021 and 10th February 2021 to the 2nd Interested Party which were consolidated.
16. They are aggrieved that it found that the 1st Interested Party was correct in applying the Rules of the PCK Pension Scheme in the calculation of their benefits, rendered its decision dated 10th November 2023 dismissing their Complaints dated 25th February 2021 and 10th February 2021.
17. They filed an Appeal with the 1st Respondent on 6th December 2023 being RBAT Appeal No. 13 of 2023; Agnes Syokau Wambua & 146 Others -vs- Retirement Benefits Authority and Another which culminated in a decision that was rendered on 24th November 2024 wherein it dismissed the Appeal with no orders as to costs.
18. It is their case that the decision is not rationally connected to the information before it as it assumed that Rule 8 of the Kenya Information and Communications of Kenya Act, 1998, Transitional Provisions preserved our benefits whilst subjecting us to the 1st Interested Party's pension Rules.
19. They maintain that the decision was materially influenced by a wrong interpretation of Rule 8 of the Kenya Information and Communications of Kenya Act, 1998, Transitional Provisions that led it to conclude that the 1st Respondent correctly applied the Trust Deed and Rules of PCK Pension Scheme in determining our benefits.
20. the 1st Respondent acted with complete disregard to sound legal principles that are. foundational to the functionality of Transitional Provisions.
21. They are persuaded that the 1st Respondent abdicated its role to render its decision on the correct interpretation of Rule 8 of the Kenya Information and Communications of Kenya Act, 1998, Transitional Provisions.
22. The decision was made irrationally, unreasonably, procedurally unfair and disproportionate to any interest sought to be protected.
The Respondent’s case;
23. The Respondent filed grounds of opposition in opposing the application on the grounds that;
a. That the Chamber Summons Application has been overtaken by events as the Applicants’ Appeal filed on 6thDecember 2023 was determined by the 1st Respondent in RBAT Appeal No.13 0f 2023-Agnes Syokau Wambua & 146 Others-vs-Retirement Benefits Authority and Another.
b. That contrary to the Applicants’ allegation that the 1stRespondent abdicated its role to render its decision on the correct interpretation of Rule 8 of the Kenya Information and Communications of Kenya Act, 1998, Transitional Provisions; the 1st Respondent acted within its’ jurisdiction as provided under Section 48 of the Retirement Benefits Act, Cap. 197.
c. That contrary to the Applicants’ allegations the 1stRespondent followed all statutory procedures and made its decision within its jurisdiction.
d. That contrary to the Applicants’ allegations the 1stRespondent decision is rationally connected to the information before it.
e. That contrary to the Applicants’ allegations the 1stRespondent decision was procedurally fair.
f. That the Applicants’ have not shown the unreasonability, illegality, and procedural impropriety of the decision made by the 1st Respondent.
g. That the 1st Respondent’s decision was lawful, procedurally fair and regular. The Court of Appeals decision in Ex Chief Peter Odoyo Ogada is categorical regarding upholding the doctrine of separation of powers with respect to the statutory mandates of administrative bodies visa vis’ the court’s jurisdiction when determining Judicial Review. A body or organ performing statutory duties has discretion when handling matters falling within its mandate and where such a body applies its mind to constitutional requirements and reaches a rational conclusion courts should not review that decision.
h. That the application is frivolous, vexatious, hopeless and an abuse of court process.
The 1st Interested Party’s case;
24. On its part and in opposing the application, it raise the following primary grounds: -
a) The Application is incompetent, misconceived and devoid of any merit in view of its own contents together with the supporting affidavit.
b) The orders sought under the Application are untenable and are based on a grave misconception of law and fact.
c) The orders sought herein are unsustainable and are therefore unavailable to the Applicant.
d) The Application is tantamount to trifling with the Court and is an abuse of the process of this Honorable Court.
The 2nd Interested Parties case;
25. It opposes the application and argues that the Applicants, who are former employees of the Postal Corporation of Kenya (PCK) and members of the PCK Staff Pension Scheme, lodged complaints with the 2nd Interested Party regarding the computation of their pension benefits, alleging that their benefits should be calculated under the Kenya Posts and Telecommunications Corporation (hereinafter also referred to as "KPTC") Pension Scheme rules, pursuant to Rule 8 of the Third Schedule of the Kenya Information and Communications Act, 1998.
26. The 2nd Interested Party, ‘s case is that it investigated the Applicants' complaints and made a decision on 10th November 2023.
27. It arrived at a finding that indicated that the benefits were correctly computed under the PCK Pension Scheme Rules.
28. The decision did not sit well with the Applicants who appealed to the 1st Respondent in RBAT Appeal No. 130f 2023.
29. In its judgment dated 14th November, 2024, the 1st Respondent, dismissed the appeal, finding that the benefits were correctly computed under the PCK Pension Scheme rules and that Rule 8 preserved continuity of service, not specific KPTC pension benefits.
30. In its determination, the 1st Respondent stated that upon the transfer of assets and liabilities from KPTC to Telposta Pension Scheme, and subsequently from Telposta Pension Scheme to PCK Pension Scheme, the PCK Pension Scheme's Trust Deed and Rules became the most appropriate rules applicable to the Applicants' benefits.
31. It is its case that it acted within its statutory mandate as provided under the Retirement Benefits Act, Cap. 197, and adhered to all statutory procedures.
32. It maintains that the 1st Respondent's decision was rationally connected to the evidence and legal interpretation.
33. The 1st Respondent's decision was not materially influenced by a wrong interpretation of Rule 8 of the Kenta information and Communications of Kenya Act, 1998, Transitional Provisions.
34. The 1st Respondent correctly interpreted Rule 8 as a transitional provision aimed at preserving service, not at dictating which specific scheme rules should apply post-transition.
35. The 1st Respondent did not act with complete disregard to sound legal principles that are foundational to the functionality of Transitional Provisions.
36. The 1st Respondent's interpretation was consistent with the purpose of such provisions.
37. The 1st Respondent fully considered and made a clear determination regarding the application and effect of Rule 8 in its Judgement.
38. The 1st Respondent followed due process, heard all parties, and rendered a reasoned decision within its jurisdiction.
39. The 1st Respondent exercised its powers lawfully and judiciously.
40. It is no case that the Applicants' prayer for a Judicial Review Order of Mandamus compelling the 1 st Respondent to re-determine the appeal is now moot and has been overtaken by events, given that the 1 st Respondent already conclusively determined the said Appeal on 14th November 2024.
Analysis and Determination;
41. The issue for determination is whether or not the Applicants have made out a case for the grant of the orders sought.
42. Order 53 Rule 1 of the Civil Procedure Rules, provides that no Application for judicial review orders should be made unless leave of the court was sought and granted.
43. in Republic v County Council of Kwale & Another Exparte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 as follows:
“The purpose of Application for leave to apply for judicial review is firstly to eliminate at an early stage any Applications for judicial review which are either frivolous, vexatious or hopeless and secondly 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. The requirement that leave must be obtained before making an Application for judicial review is designed 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…Leave may only be granted therefore 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 interpartes hearing of the substantive Application for judicial review. It is an exercise of the court’s discretion but as always it has to be exercised judicially”.
44. It is also trite that in an Application for leave, 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.
45. In Uwe Meixner & another v Attorney General [2005] eKLR, it was held that the leave of court is a prerequisite to making a substantive Application for Judicial Review with a view to filtering out frivolous Applications and the grant or refusal involves an exercise of judicial discretion and the test to be applied is whether the Applicant has an arguable case. Thus, the first step in the Judicial Review procedure involves the mandatory "leave stage." At this stage an Application for leave to bring Judicial Review proceedings must first be made. The leave stage as held by Waki J is used to identify and filter out, at an early stage, claims which may be trivial or without merit.
46. Upon a cursory look at the application and without getting into the merits of the intended case the court is satisfied that the Applicants have made out a prima facie case that calls for a deeper consideration.
Disposition;
47. The Applicants have made out a prima case that justifies the grant of the orders sought.
Order;
1) The Application is allowed.
2) The Applicants shall file and serve the substantive suit within 14 days which shall be in a separate file.
3) The Respondent and the interested parties shall file and serve their responses within 14 days of the date of service of the Application.
4) The Applicants shall thereafter file and serve submissions within 7 days of the date of service.
5) The Respondent and the interested parties shall file and serve their submissions within 7 days thereafter.
6) This file is closed.
Dated, signed and delivered at Nairobi this 17th day of March, 2026.