Background
1. By a Chamber Summons dated 6th September 2024, brought under Order 53 Rule 1 of the Civil Procedure Rules, the Ex parte Applicants sought leave to institute judicial review proceedings, together with the grant of interim orders pending the hearing and determination of that leave application and, thereafter, of the intended substantive motion.
2. The intended substantive application, exhibited to the Chamber Summons, seeks, principally: an order of certiorari to quash a circular dated 6th August 2024, issued by the 1st Respondent and titled “Operation Hours and Payments Schedules,” which revised the operating hours of alcoholic drinks outlets in Kajiado County and the licence fees payable for the 2024/2025 financial year; orders of prohibition restraining the 2nd and 3rd Respondents, the Inspector-General of Police and various national enforcement agencies from arresting, detaining or otherwise enforcing the circular against the Applicants and their members; and orders of mandamus compelling the return of stock seized in enforcement of the circular and an account of the Alcoholic Drinks Control Fund established under Section 5 of the Alcoholic Drinks Control Act. The Applicants contend that the circular was issued without public participation, arbitrarily increased licence fees, and has been enforced in a manner that violates their rights to fair administrative action and to carry on lawful business.
3. The 1st Respondent opposed the application by a Replying Affidavit sworn on 18th September 2024 and written submissions, contending that the Applicants have not met the threshold for the grant of leave; that the circular is a lawful exercise of the County's devolved mandate to regulate the alcohol industry under the Alcoholic Drinks Control Act, 2020, the Kajiado County Alcoholic Drinks Control Act, 2014 and the Kajiado County Finance Act, 2023; and that the intended application invites the court to sit in judgment over a policy and regulatory decision reserved to the County Executive.
4. Decisively, the 1st Respondent points out – and it is not disputed – that the circular in issue applied only to the 2024/2025 financial year, which has since lapsed, so that the operating-hours and fee schedule the Applicants seek to impugn are no longer in force. The 2nd, 3rd, 4th and 5th Respondents did not file any response. The court directed that the leave application be canvassed by way of written submissions, which both sides have filed.
Analysis
5. As rightly submitted, an application for leave under Order 53 Rule 1 is not a formality; it performs a filtering function, screening out claims that are frivolous, vexatious or hopeless before the machinery of judicial review is set in motion. The threshold is deliberately low, in that an applicant need only disclose an arguable case, an not one that must necessarily succeed. In Mrao Limited v First American Bank of Kenya Ltd & 2 others [2003] KLR 125, it was held that an arguable, or prima facie, case is one which, on the material presented, a tribunal properly directing itself would conclude discloses a right apparently infringed, calling for an explanation or rebuttal. That threshold, however low, must still be crossed, and leave will be declined where the intended proceedings would, even if the leave sought were granted, serve no practical purpose.
6. It is settled that a court will not exercise its jurisdiction, at the leave stage or beyond, to entertain a question that has become moot. The Supreme Court, in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR), affirmed that courts do not act in vain, and will decline to expend judicial time on academic or hypothetical questions that no longer present a live controversy capable of a practical remedy. That restraint applies with particular force before granting leave to challenge, by certiorari and prohibition, a decision or directive whose operative life has already run its course: quashing what no longer exists, or prohibiting the enforcement of what can no longer be enforced, is an exercise in futility.
7. The intended substantive application is, in its entirety, directed at a single circular dated 6th August 2024, which by its own terms regulated the operating hours and licence fee schedule for alcoholic drinks outlets in Kajiado County for the 2024/2025 financial year. That financial year has lapsed. On the 1st Respondent's uncontroverted averment, the operation hours and fee schedule the circular prescribed are no longer in force, having been overtaken by the ordinary annual cycle of county budgeting and licensing. In any case, it was established that the circular, was grounded on enabling county and national legislation. There is no suggestion before this court that the circular has been renewed or extended, or that its terms continue to apply, nor any evidence of a live or imminent threat that the Applicants continue to face under it.
8. In these circumstances, the reliefs the Applicants intend to seek – certiorari to quash a circular that has already expired by effluxion of time, and prohibition against the enforcement of directives that are no longer operative – would, even if granted, resolve nothing. There is nothing left to quash and nothing left to prohibit.
9. The dispute, whatever its original merit, has been overtaken by events, and this court will not grant leave to pursue proceedings that have been rendered academic, however genuinely felt the Applicants' grievance may have been when it arose. This finding is dispositive of the application, and it is unnecessary to determine the parties' further contentions on separation of powers, public participation, or the sufficiency of the Applicants' evidence on those questions; those are matters for a case that presents a live and practical controversy.
10. This conclusion works no injustice to the Applicants. Should the County Government of Kajiado issue a fresh circular for a current or future financial year on materially similar terms, nothing in this ruling bar the Applicants from testing its legality afresh, at which point any complaint of want of public participation or unlawful fee increases may be ventilated in proceedings founded on a live controversy.
11. Accordingly, leave to file the intended substantive Judicial Review Application is declined on grounds of mootness, and the Chamber Summons dated 6th September 2024 is dismissed. Costs shall follow the event and are awarded to the 1st Respondent.
It is so ordered.
1. By a Chamber Summons dated 6th September 2024, brought under Order 53 Rule 1 of the Civil Procedure Rules, the Ex parte Applicants sought leave to institute judicial review proceedings, together with the grant of interim orders pending the hearing and determination of that leave application and, thereafter, of the intended substantive motion.
2. The intended substantive application, exhibited to the Chamber Summons, seeks, principally: an order of certiorari to quash a circular dated 6th August 2024, issued by the 1st Respondent and titled “Operation Hours and Payments Schedules,” which revised the operating hours of alcoholic drinks outlets in Kajiado County and the licence fees payable for the 2024/2025 financial year; orders of prohibition restraining the 2nd and 3rd Respondents, the Inspector-General of Police and various national enforcement agencies from arresting, detaining or otherwise enforcing the circular against the Applicants and their members; and orders of mandamus compelling the return of stock seized in enforcement of the circular and an account of the Alcoholic Drinks Control Fund established under Section 5 of the Alcoholic Drinks Control Act. The Applicants contend that the circular was issued without public participation, arbitrarily increased licence fees, and has been enforced in a manner that violates their rights to fair administrative action and to carry on lawful business.
3. The 1st Respondent opposed the application by a Replying Affidavit sworn on 18th September 2024 and written submissions, contending that the Applicants have not met the threshold for the grant of leave; that the circular is a lawful exercise of the County's devolved mandate to regulate the alcohol industry under the Alcoholic Drinks Control Act, 2020, the Kajiado County Alcoholic Drinks Control Act, 2014 and the Kajiado County Finance Act, 2023; and that the intended application invites the court to sit in judgment over a policy and regulatory decision reserved to the County Executive.
4. Decisively, the 1st Respondent points out – and it is not disputed – that the circular in issue applied only to the 2024/2025 financial year, which has since lapsed, so that the operating-hours and fee schedule the Applicants seek to impugn are no longer in force. The 2nd, 3rd, 4th and 5th Respondents did not file any response. The court directed that the leave application be canvassed by way of written submissions, which both sides have filed.
Analysis
5. As rightly submitted, an application for leave under Order 53 Rule 1 is not a formality; it performs a filtering function, screening out claims that are frivolous, vexatious or hopeless before the machinery of judicial review is set in motion. The threshold is deliberately low, in that an applicant need only disclose an arguable case, an not one that must necessarily succeed. In Mrao Limited v First American Bank of Kenya Ltd & 2 others [2003] KLR 125, it was held that an arguable, or prima facie, case is one which, on the material presented, a tribunal properly directing itself would conclude discloses a right apparently infringed, calling for an explanation or rebuttal. That threshold, however low, must still be crossed, and leave will be declined where the intended proceedings would, even if the leave sought were granted, serve no practical purpose.
6. It is settled that a court will not exercise its jurisdiction, at the leave stage or beyond, to entertain a question that has become moot. The Supreme Court, in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR), affirmed that courts do not act in vain, and will decline to expend judicial time on academic or hypothetical questions that no longer present a live controversy capable of a practical remedy. That restraint applies with particular force before granting leave to challenge, by certiorari and prohibition, a decision or directive whose operative life has already run its course: quashing what no longer exists, or prohibiting the enforcement of what can no longer be enforced, is an exercise in futility.
7. The intended substantive application is, in its entirety, directed at a single circular dated 6th August 2024, which by its own terms regulated the operating hours and licence fee schedule for alcoholic drinks outlets in Kajiado County for the 2024/2025 financial year. That financial year has lapsed. On the 1st Respondent's uncontroverted averment, the operation hours and fee schedule the circular prescribed are no longer in force, having been overtaken by the ordinary annual cycle of county budgeting and licensing. In any case, it was established that the circular, was grounded on enabling county and national legislation. There is no suggestion before this court that the circular has been renewed or extended, or that its terms continue to apply, nor any evidence of a live or imminent threat that the Applicants continue to face under it.
8. In these circumstances, the reliefs the Applicants intend to seek – certiorari to quash a circular that has already expired by effluxion of time, and prohibition against the enforcement of directives that are no longer operative – would, even if granted, resolve nothing. There is nothing left to quash and nothing left to prohibit.
9. The dispute, whatever its original merit, has been overtaken by events, and this court will not grant leave to pursue proceedings that have been rendered academic, however genuinely felt the Applicants' grievance may have been when it arose. This finding is dispositive of the application, and it is unnecessary to determine the parties' further contentions on separation of powers, public participation, or the sufficiency of the Applicants' evidence on those questions; those are matters for a case that presents a live and practical controversy.
10. This conclusion works no injustice to the Applicants. Should the County Government of Kajiado issue a fresh circular for a current or future financial year on materially similar terms, nothing in this ruling bar the Applicants from testing its legality afresh, at which point any complaint of want of public participation or unlawful fee increases may be ventilated in proceedings founded on a live controversy.
11. Accordingly, leave to file the intended substantive Judicial Review Application is declined on grounds of mootness, and the Chamber Summons dated 6th September 2024 is dismissed. Costs shall follow the event and are awarded to the 1st Respondent.
It is so ordered.