1. The application that comes up for determination is the one dated 13th November 2024 wherein the applicant is seeking the following orders;
a) THAT this application be certified urgent and be heard ex-parte in the first instance and heard during the current Court Vacation.
b) THAT an Order of certiorari to bring into High Court for purposes of quashing the decision of the respondent dated 30th October 2024 in respect to the determination of a complaint lodged by the ex-parte applicants on the 20th June 2023.
c) THAT an Order directed at the respondent to re-admit for fresh investigation and determination in strict compliance with section 4 (3) of the fair Administration Action act No. 4 of 2015 the exparte applicant’s complaints dated 20th June 2023.
d) That leave so granted do operate as stay of the Decision of the respondent dated 30th October 2024.
e) THAT the cost of this application be provided for.
The applicants’ case;
2. It is the applicants’ case that the respondent violated their provisions of article 47 and section 4 of the Fair Administrative Action Act
3. The High Court directed the Respondent to readmit her complaint for hearing. According to the applicants, the respondent did not inform them of the form of hearing that that it opted for the rehearing of the complaint.
4. They argue that she was entitled to the information when it came to the form of hearing that the respondent that to carry out.
The respondent’s case;
5. According to the respondent, the application is defective because no leave was sought before the applicant moved the court.
6. It is its case that the application does not seek leave of the court to commence judicial review proceedings. Rather, the application seeks final orders of certiorari and mandamus.
7. It is its case that a substantive order cannot be granted to an applicant who did not seek leave of the court.
8. The proceedings commenced by the Applicant are pursuant to Section 8 and 9 of the Law Reform Act as read with Order 53 of the Civil Procedure Rules.
9. The law requires that a party first obtains leave of the court
before commencing judicial review proceedings. This is under Order 53 Rule (1) which provides,
No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been
granted in accordance with this rule.
10. A party is bound by its pleadings and cannot be allowed to
deviate from them since pleadings are the cornerstone of
litigation.
11. It is its case that These are not procedural issues which can be
cured under Article 159 of the Constitution. The grant of leave is a jurisdictional issue as it is only after grant of leave that the court can assume jurisdiction.
12. On another front, it is the respondent’s case that it has the power to embrace the form of hearing that it deems appropriate for each case.
13. It argues that it notified counsel for the applicant to furnish it with more documents and that it was going to move in determining the complaint that was before it.
14. It argues that in adopting the impugned form of hearing, it exercised its execised its discretion legally and it arrived at the impugned decision and this court cannot interfere with its discretionary power.
Analysis and Determination;
The issues for determination are whether:
a) The application has merit.
b) Who shall bear costs.
15. The applicable law on leave to commence judicial review
proceedings is Order 53 Rule 1 of the Civil Procedure Rules,
which provides that no Application for judicial review orders
should be made unless leave of the court was sought and
granted.
16. In Republic v County Council of Kwale & Another Ex ParteKondo & 57 Others, Mombasa HCMCA No. 384 of 1996 the court 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”.
17. The leave of the court is a prerequisite to filing a substantive
Application for Judicial Review. The Rationale behind having this provision was intended for purposes of filtering out
frivolous Applications and the grant or refusal of leave involves an
exercise of judicial discretion and the test to be applied is whether the Applicant has an arguable case.
18. The Court ought not to delve deeply into the arguments of the
parties during the hearing of a leave application. The court
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.
19. 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.
20. Determination;
In the instant case it is this court’s finding that the applicants did not seek the leave of the court and the application is fatally defective.
21. Costs;
The Supreme Court in the case of Jashir Singh Rai & Others vs. Tarlochan Rai & Others observed that,” In the classic common law style, the courts have to proceed on a case by case basis, to identify "good reasons" for such a departure. An examination of evolving practices on this question shows that, as an example, matter in the domain of public interest litigation tend to be exempted from award of costs…”
22. The applicants shall bear the costs.
23. Order
The application is dismissed with costs.
Delivered, Dated and Signed on this 23rd June 2026 at
Eldoret High Court
a) THAT this application be certified urgent and be heard ex-parte in the first instance and heard during the current Court Vacation.
b) THAT an Order of certiorari to bring into High Court for purposes of quashing the decision of the respondent dated 30th October 2024 in respect to the determination of a complaint lodged by the ex-parte applicants on the 20th June 2023.
c) THAT an Order directed at the respondent to re-admit for fresh investigation and determination in strict compliance with section 4 (3) of the fair Administration Action act No. 4 of 2015 the exparte applicant’s complaints dated 20th June 2023.
d) That leave so granted do operate as stay of the Decision of the respondent dated 30th October 2024.
e) THAT the cost of this application be provided for.
The applicants’ case;
2. It is the applicants’ case that the respondent violated their provisions of article 47 and section 4 of the Fair Administrative Action Act
3. The High Court directed the Respondent to readmit her complaint for hearing. According to the applicants, the respondent did not inform them of the form of hearing that that it opted for the rehearing of the complaint.
4. They argue that she was entitled to the information when it came to the form of hearing that the respondent that to carry out.
The respondent’s case;
5. According to the respondent, the application is defective because no leave was sought before the applicant moved the court.
6. It is its case that the application does not seek leave of the court to commence judicial review proceedings. Rather, the application seeks final orders of certiorari and mandamus.
7. It is its case that a substantive order cannot be granted to an applicant who did not seek leave of the court.
8. The proceedings commenced by the Applicant are pursuant to Section 8 and 9 of the Law Reform Act as read with Order 53 of the Civil Procedure Rules.
9. The law requires that a party first obtains leave of the court
before commencing judicial review proceedings. This is under Order 53 Rule (1) which provides,
No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been
granted in accordance with this rule.
10. A party is bound by its pleadings and cannot be allowed to
deviate from them since pleadings are the cornerstone of
litigation.
11. It is its case that These are not procedural issues which can be
cured under Article 159 of the Constitution. The grant of leave is a jurisdictional issue as it is only after grant of leave that the court can assume jurisdiction.
12. On another front, it is the respondent’s case that it has the power to embrace the form of hearing that it deems appropriate for each case.
13. It argues that it notified counsel for the applicant to furnish it with more documents and that it was going to move in determining the complaint that was before it.
14. It argues that in adopting the impugned form of hearing, it exercised its execised its discretion legally and it arrived at the impugned decision and this court cannot interfere with its discretionary power.
Analysis and Determination;
The issues for determination are whether:
a) The application has merit.
b) Who shall bear costs.
15. The applicable law on leave to commence judicial review
proceedings is Order 53 Rule 1 of the Civil Procedure Rules,
which provides that no Application for judicial review orders
should be made unless leave of the court was sought and
granted.
16. In Republic v County Council of Kwale & Another Ex ParteKondo & 57 Others, Mombasa HCMCA No. 384 of 1996 the court 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”.
17. The leave of the court is a prerequisite to filing a substantive
Application for Judicial Review. The Rationale behind having this provision was intended for purposes of filtering out
frivolous Applications and the grant or refusal of leave involves an
exercise of judicial discretion and the test to be applied is whether the Applicant has an arguable case.
18. The Court ought not to delve deeply into the arguments of the
parties during the hearing of a leave application. The court
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.
19. 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.
20. Determination;
In the instant case it is this court’s finding that the applicants did not seek the leave of the court and the application is fatally defective.
21. Costs;
The Supreme Court in the case of Jashir Singh Rai & Others vs. Tarlochan Rai & Others observed that,” In the classic common law style, the courts have to proceed on a case by case basis, to identify "good reasons" for such a departure. An examination of evolving practices on this question shows that, as an example, matter in the domain of public interest litigation tend to be exempted from award of costs…”
22. The applicants shall bear the costs.
23. Order
The application is dismissed with costs.
Delivered, Dated and Signed on this 23rd June 2026 at
Eldoret High Court