1. The Expate Applicant herein moved this court vide chamber summons dated 6.8.24 seeking the following orders;
a. That the she be granted leave to Apply for an order of mandamus directed at the respondents herein to pay the applicant the principle sum of Kshs 400,000/- and costs certified at Kshs 113, 655/= together with interest at the rate of 14% per annum awarded in KISII CMCC NO 698 of 2016 on 29.11.2021
b. That the costs of the application be in the cause
2. The face of this Application is based on the Ground that;
a. The judgement was delivered against the respondent herein in the sum of Ksh 400, 000/= and with costs costs certified at Ksh 113, 655 together with interest from the date of judgement given on 29TH November 2021. However, the respondents have completely failed and/ refused /ignored to settle the said decretal sum despite serving them with the decree and the copies of the decree certificate of order and certificate of costs .
b. The application is supported by the affidavit of Mr Bosire Gichana Advocate for the ex-parte applicant . he deponed to the history of the case and the decree. he said he complied with all the requirements for service under the Government proceedings Act by serving respondent with the copies of the judgment , decree, certificate of costs and certificate of order (KBG -1,2,,3 and 4 respectively)on 12.4.2023 and the forwarding letter was received by the 2nd respondent. Further that he also served the respondents with a demand notice (KBG 5 -)
ANALYSIS AND DETERMINATION
a. Whether the applicant has made out a case for grant of leave to file judicial review proceedings in the nature of mandamus
3. I have considered the Application, the annexure’s thereto and the Ex-parte Applicant’s submissions.
4. . The threshold for leave to file judicial review proceedings was laid down in the case of Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 where it was held 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 inter partes 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”.
5. I have carefully considered the application, the annextures , the response by the respondent and I find that the Ex parte has established that she has an arguable case of unpaid legal fees against the respondents at this stage . She has satisfied the conditions for granting of leave to file judicial review proceedings in the nature of mandamus ,
6. In the upshot I proceed to issue the following orders;-
a. The exparte applicant has met the threshold for granting leave to file judicial review proceedings in the nature of Mandumus against the respondents as prayed .
b. Leave is granted to the ex parte applicant to file and served the substantive Notice of motion within 14 days from today.
c. .The costs of the application be in the cause .
d. This file is closed .
a. That the she be granted leave to Apply for an order of mandamus directed at the respondents herein to pay the applicant the principle sum of Kshs 400,000/- and costs certified at Kshs 113, 655/= together with interest at the rate of 14% per annum awarded in KISII CMCC NO 698 of 2016 on 29.11.2021
b. That the costs of the application be in the cause
2. The face of this Application is based on the Ground that;
a. The judgement was delivered against the respondent herein in the sum of Ksh 400, 000/= and with costs costs certified at Ksh 113, 655 together with interest from the date of judgement given on 29TH November 2021. However, the respondents have completely failed and/ refused /ignored to settle the said decretal sum despite serving them with the decree and the copies of the decree certificate of order and certificate of costs .
b. The application is supported by the affidavit of Mr Bosire Gichana Advocate for the ex-parte applicant . he deponed to the history of the case and the decree. he said he complied with all the requirements for service under the Government proceedings Act by serving respondent with the copies of the judgment , decree, certificate of costs and certificate of order (KBG -1,2,,3 and 4 respectively)on 12.4.2023 and the forwarding letter was received by the 2nd respondent. Further that he also served the respondents with a demand notice (KBG 5 -)
ANALYSIS AND DETERMINATION
a. Whether the applicant has made out a case for grant of leave to file judicial review proceedings in the nature of mandamus
3. I have considered the Application, the annexure’s thereto and the Ex-parte Applicant’s submissions.
4. . The threshold for leave to file judicial review proceedings was laid down in the case of Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 where it was held 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 inter partes 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”.
5. I have carefully considered the application, the annextures , the response by the respondent and I find that the Ex parte has established that she has an arguable case of unpaid legal fees against the respondents at this stage . She has satisfied the conditions for granting of leave to file judicial review proceedings in the nature of mandamus ,
6. In the upshot I proceed to issue the following orders;-
a. The exparte applicant has met the threshold for granting leave to file judicial review proceedings in the nature of Mandumus against the respondents as prayed .
b. Leave is granted to the ex parte applicant to file and served the substantive Notice of motion within 14 days from today.
c. .The costs of the application be in the cause .
d. This file is closed .