Ruling
The ex-parte applicant herein filed the application dated 20.6.24 seeking leave to Institute Judicial review proceeding on the nature of Certiorari and mandamus against the respondent and the intesrested party to remove and bring to this court a circular dated 7.5.24 issued by the 2nd interested party i.e Kiamokama Tea factory Limited on electoral areas and polling stations for purposes of quashing it . He also sought leave to file mandamus proceedings to compel the respondent and the interested pary to conduct elections of directors of the interested party in strict compliance with the consent recorded in Nairobi Consolidated Petition E254 of 2020 and High Court Constitutional Consolidated Petition E016 of 2021 by using only those polling stations that were existing in the memorandum and Articles of Association of the respondent .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”.
I have carefully considered the application, the annexed affidavit and statement of the exparte applicant and I note that he has has not exhibited any document to show that he is a shareholder of Kiamakoma Tea factory limited and his centre or polling station . He has thus not established his relationship with the Company and his capacity to move the court for the said writs .
The exparte applicant has also not annexed the Memorandum and Articles of Association of the company which he alleges that lists the centres as at October 2020 as per the memorandum and Articles of Association of the Company which are to be used as polling stations as per the consent filed in court in the said consolidated case. These are the documents which according to him list the polling stations and in the absence of the same this court cannot tell whether the circular dated 7.5.24 contravenes the said consent .
It has not been established that the circular dated 7.5.24 listed centres/ polling stations which are not as per the Memorandum and Articles of association to form a basis of quashing the said decision and to compel the respondent and the interested party enforce the said consent.
The exparte applicant has not demonstrated an arguable case against the respondent and the interested party to warrant granting of leave to file the Motions for the writs of certiorari and mandumus . The application is thus speculative and devoid of merit .
In the upshot I dismiss the application dated 20.6.24 with no orders as to costs . This file is closed.