1.JOASH OSIEMO MOGAKA, the ex-parte applicant herein filed chamber summons dated 9.4.2025 seeking leave to apply for an order of mandamus against the respondents to pay the applicant the principal sum of KSHS 1,000,000 and costs certified at KSHS 162,953 together with the interest at the rate of 14% per annum awarded in Kisii HC Constitutional petition no 29of 2011 on 24th day of October 2013.
2.Mr Kennedy Bosire Gichana advocate who is on record for the applicant herein , vide the verifying affidavit dated 9.4.25 in support of the application told this court how he represented the applicant herein in the high court of Kenya at Kisii in constitutional petition no 29of 2011 , he also stated that he applied for certificate of order against government pursuant to the provisions of order 29 rule 3 of the civil procedure rules 2010.
3.That on 16th day of July 2021, he served the pleadings proceedings, judgement, decree , certificate of costs and certificates of order against the Government upon the attorney general vide letter dated 15.7.2021 who acknowledged receipt of the said letter .
4.That on several occasions, he made demand in writing and also spoke to the litigation counsel regarding the payments who informed him that the matter was being attended to. Also that they took out a notice to show cause why contempt proceedings should not be commenced against the Principal Secretary, Ministry of Interior and Coordination of National Government pursuant to section 30 of the contempt of court act which was later declared unconstitutional.
5. 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”.
6. I have carefully considered the application, the annextures , the respondents did not file any response and I find that the Ex parte has established that it has an arguable case of unpaid compensation against the respondents at this stage . He has satisfied the conditions for granting of leave to file judicial review proceedings in the nature of mandamus .
7. In the upshot I proceed to issue the following orders;-
a. Leave be and is hereby granted to the ex-parte applicant to file and serve the substantive motion for mandamus against the respondents within 21 days from today.
b. Costs be in the cause.
2.Mr Kennedy Bosire Gichana advocate who is on record for the applicant herein , vide the verifying affidavit dated 9.4.25 in support of the application told this court how he represented the applicant herein in the high court of Kenya at Kisii in constitutional petition no 29of 2011 , he also stated that he applied for certificate of order against government pursuant to the provisions of order 29 rule 3 of the civil procedure rules 2010.
3.That on 16th day of July 2021, he served the pleadings proceedings, judgement, decree , certificate of costs and certificates of order against the Government upon the attorney general vide letter dated 15.7.2021 who acknowledged receipt of the said letter .
4.That on several occasions, he made demand in writing and also spoke to the litigation counsel regarding the payments who informed him that the matter was being attended to. Also that they took out a notice to show cause why contempt proceedings should not be commenced against the Principal Secretary, Ministry of Interior and Coordination of National Government pursuant to section 30 of the contempt of court act which was later declared unconstitutional.
5. 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”.
6. I have carefully considered the application, the annextures , the respondents did not file any response and I find that the Ex parte has established that it has an arguable case of unpaid compensation against the respondents at this stage . He has satisfied the conditions for granting of leave to file judicial review proceedings in the nature of mandamus .
7. In the upshot I proceed to issue the following orders;-
a. Leave be and is hereby granted to the ex-parte applicant to file and serve the substantive motion for mandamus against the respondents within 21 days from today.
b. Costs be in the cause.