' [1] The Chamber Summons dated 21st May 2024 was filed by the ex parte applicant, Jeremiah Mwarocha Mwarandu , for the following orders:
[a] Spent;
[b] That he be granted leave to file judicial review proceedings for an order of Mandamus to compel the respondents herein to comply, fulfill and satisfy the judgment and order of the Court.
[c] That an order be issued to the commissioners of the 1st respondent, namely, the 2nd to 6th respondents herein, to attend court and show cause why they should not be committed to civil jail for contempt of court.
[d] That costs of the application be granted to him.
[2] The application was premised on the grounds that the applicant instituted a suit by filing a Statement of Claim dated 27th September 2021. The cause of action was his unlawful, unfair and illegal termination/dismissal from employment. The applicant explained that the suit was concluded through a consent judgment entered on the 2nd May 2023 and a final order issued on 4th May 2023. He averred that, although the respondents were duly served with the Order as well as a Certificate of Order and a Certificate of Costs against the Government, the decretal amount had not been paid; hence the instant application.
[3] The respondents opposed the application vide their Replying Affidavit sworn on 8th July 2024 by the 1st respondent’s Deputy Director, Legal Services. They conceded that a claim was filed by the applicant and that it was compromised and a consent judgment entered on 2nd May 2023. They however averred that the decretal sum has since been fully paid. The respondents annexed several documents to buttress their averments and posited that there is no dispute before the Court fit for interrogation by way of a substantive judicial review application if leave was to be granted.
[4] The application was canvassed on 24th July 2024 by way of oral submissions. Mr. Odhiambo , learned counsel for the applicant conceded that a substantial amount had been paid but contended that not all the sums due have been paid. On the other hand, Mr. Osman for the respondents reiterated the respondent’s averments in their Supporting Affidavit and urged the Court to find that the applicant has not met the threshold for judicial review. He relied on Republic v County Council of Kwale, Ex Parte Kondo and others, High Court Miscellaneous Application No. 384 of 1996, and submitted that the purpose of leave is to eliminate frivolous applications such as the instant one. Thus, the respondents prayed for the dismissal of the application.
[5] I have given careful consideration to the application, the averments set out in the affidavits filed by the parties including the documents annexed thereto. I have also taken into consideration the submissions made herein by learned counsel.
[6] Order 53 Rule 1 of the Civil Procedure Rules is explicit that the Court has the discretion to either grant such an application ex parte or hear the parties on the prima facie merits thereof. The aforementioned provision states:
(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.
(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.
(3) The judge may, in granting leave, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable institution.
(4) The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise:
Provided that where the circumstances so require, the judge may direct that the application be served for hearing inter partes before grant of leave.
Provided further that where the circumstances so require the judge may direct that the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within seven days.”
[7] Hence, in Republic v County Council of Kwale & Another, Ex Parte Kondo and 57 others (supra) the court held:
“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, vexations 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 the administrative action while proceedings for Judicial Review of it were actually pending even though misconceived...”
[8] There is no dispute that the applicant sued the 1 st respondent for unlawful termination/dismissal from employment. It is also common ground that the suit was concluded through a consent judgment dated 2 nd May 2023. The formal order was issued on 4 th May 2023. The parties are in agreement that the 1 st respondent was duly served with the Order as well as a Certificate of Order and a Certificate of Costs against the Government. More importantly, the parties are in agreement that a substantial part of the judgment sum has been paid by the 1 st respondent. The point of departure is whether full payment has been made as contended by the respondents.
[9] In Republic v County Council of Kwale & another (supra) for instance, the Court held:
“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 partes 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 exercise judiciously.”
[10] In this instance, the applicant seeks an order of Mandamus, yet the evidence presented by the respondents, which the applicant conceded to, is that the claim was settled by consent and that substantial payment has been made. The contestation is about whether the 1 st respondent was justified in deducting withholding tax from the amount due. That is a dispute that goes to the merit of the dispute between the parties and may require evidence to enable the Court make a determination. Accordingly, the best forum ought to have been the court that handled the primary suit. Authorities abound for the principle that judicial review is concerned with the decision-making process as opposed to the merits of the decision. For instance, in Republic v Attorney General & others, Ex Parte Diamond Hasham Lalji & another [2018] eKLR it was held, at paragraph 91 as follows:
“Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters.
It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of fact and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved.
[11] This position was reiterated by the Supreme Court in Saisi & 7 others v Director of Public Prosecutions & 2 Others [2023] KESC (KLR) (Civ) (27 January 2023) (Judgment) as follows:
“76. … it is the court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialised institutions are better placed to so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in section 11(1) and (2) of the Fair Administrative Action Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in section 11(1)(e) and (h) of the Fair Administrative Action Act . The merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.
[12] In the result, I am not satisfied that sufficient cause has been shown by the applicant for the grant of leave. Accordingly, the applicant’s Chamber Summons dated 21st May 2024 is hereby dismissed. Each party to bear own costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF SEPTEMBER 2025
'
[a] Spent;
[b] That he be granted leave to file judicial review proceedings for an order of Mandamus to compel the respondents herein to comply, fulfill and satisfy the judgment and order of the Court.
[c] That an order be issued to the commissioners of the 1st respondent, namely, the 2nd to 6th respondents herein, to attend court and show cause why they should not be committed to civil jail for contempt of court.
[d] That costs of the application be granted to him.
[2] The application was premised on the grounds that the applicant instituted a suit by filing a Statement of Claim dated 27th September 2021. The cause of action was his unlawful, unfair and illegal termination/dismissal from employment. The applicant explained that the suit was concluded through a consent judgment entered on the 2nd May 2023 and a final order issued on 4th May 2023. He averred that, although the respondents were duly served with the Order as well as a Certificate of Order and a Certificate of Costs against the Government, the decretal amount had not been paid; hence the instant application.
[3] The respondents opposed the application vide their Replying Affidavit sworn on 8th July 2024 by the 1st respondent’s Deputy Director, Legal Services. They conceded that a claim was filed by the applicant and that it was compromised and a consent judgment entered on 2nd May 2023. They however averred that the decretal sum has since been fully paid. The respondents annexed several documents to buttress their averments and posited that there is no dispute before the Court fit for interrogation by way of a substantive judicial review application if leave was to be granted.
[4] The application was canvassed on 24th July 2024 by way of oral submissions. Mr. Odhiambo , learned counsel for the applicant conceded that a substantial amount had been paid but contended that not all the sums due have been paid. On the other hand, Mr. Osman for the respondents reiterated the respondent’s averments in their Supporting Affidavit and urged the Court to find that the applicant has not met the threshold for judicial review. He relied on Republic v County Council of Kwale, Ex Parte Kondo and others, High Court Miscellaneous Application No. 384 of 1996, and submitted that the purpose of leave is to eliminate frivolous applications such as the instant one. Thus, the respondents prayed for the dismissal of the application.
[5] I have given careful consideration to the application, the averments set out in the affidavits filed by the parties including the documents annexed thereto. I have also taken into consideration the submissions made herein by learned counsel.
[6] Order 53 Rule 1 of the Civil Procedure Rules is explicit that the Court has the discretion to either grant such an application ex parte or hear the parties on the prima facie merits thereof. The aforementioned provision states:
(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.
(2) An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.
(3) The judge may, in granting leave, impose such terms as to costs and as to giving security as he thinks fit including cash deposit, bank guarantee or insurance bond from a reputable institution.
(4) The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise:
Provided that where the circumstances so require, the judge may direct that the application be served for hearing inter partes before grant of leave.
Provided further that where the circumstances so require the judge may direct that the question of leave and whether grant of leave shall operate as stay may be heard and determined separately within seven days.”
[7] Hence, in Republic v County Council of Kwale & Another, Ex Parte Kondo and 57 others (supra) the court held:
“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, vexations 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 the administrative action while proceedings for Judicial Review of it were actually pending even though misconceived...”
[8] There is no dispute that the applicant sued the 1 st respondent for unlawful termination/dismissal from employment. It is also common ground that the suit was concluded through a consent judgment dated 2 nd May 2023. The formal order was issued on 4 th May 2023. The parties are in agreement that the 1 st respondent was duly served with the Order as well as a Certificate of Order and a Certificate of Costs against the Government. More importantly, the parties are in agreement that a substantial part of the judgment sum has been paid by the 1 st respondent. The point of departure is whether full payment has been made as contended by the respondents.
[9] In Republic v County Council of Kwale & another (supra) for instance, the Court held:
“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 partes 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 exercise judiciously.”
[10] In this instance, the applicant seeks an order of Mandamus, yet the evidence presented by the respondents, which the applicant conceded to, is that the claim was settled by consent and that substantial payment has been made. The contestation is about whether the 1 st respondent was justified in deducting withholding tax from the amount due. That is a dispute that goes to the merit of the dispute between the parties and may require evidence to enable the Court make a determination. Accordingly, the best forum ought to have been the court that handled the primary suit. Authorities abound for the principle that judicial review is concerned with the decision-making process as opposed to the merits of the decision. For instance, in Republic v Attorney General & others, Ex Parte Diamond Hasham Lalji & another [2018] eKLR it was held, at paragraph 91 as follows:
“Judicial review applications do not deal with the merits of the case but only with the process. In other words, judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters.
It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of fact and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved.
[11] This position was reiterated by the Supreme Court in Saisi & 7 others v Director of Public Prosecutions & 2 Others [2023] KESC (KLR) (Civ) (27 January 2023) (Judgment) as follows:
“76. … it is the court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this for several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialised institutions are better placed to so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in section 11(1) and (2) of the Fair Administrative Action Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in section 11(1)(e) and (h) of the Fair Administrative Action Act . The merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross-examination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board v Commission on Administrative Justice, Attorney General and Eng Judah Abekah, SC Petition 42 of 2019; [2021] eKLR, in matters involving the exercise of judgment and discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.
[12] In the result, I am not satisfied that sufficient cause has been shown by the applicant for the grant of leave. Accordingly, the applicant’s Chamber Summons dated 21st May 2024 is hereby dismissed. Each party to bear own costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF SEPTEMBER 2025
'