REPUBLIC AND KISUMU BAR OWNERS ASSOCIATION VS COUNTY GOVERNMENT OF KISUMU AND THE COUNTY ASSEMBLY OF KISUMU

  REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

JUDICIAL REVIEW NO. E003 OF 2023

IN THE MATTER OF AN APPLICATION BY KISUMU BAR OWNERS ASSOCIATION FOR JUDICIAL REVIEW AND ORDERS OF CERTORARI, PROHIBITION AND MANDAMUS

BETWEEN

REPUBLIC EX-PARTE

DAN OTIENO OUMA

KISUMU BAR OWNERS ASSOCIATION……………..…..RESPONDENT

VERSUS

COUNTY GOVERNMENT OF KISUMU…………………….. APPLICANT

THE COUNTY ASSEMBLY OF KISUMU…………. INTERESTED PARTY

RULING

1. The Applicant herein, the County Government of Kisumu, moved this court vide a Notice of Motion dated 18^th June 2024, pursuant to the provisions of Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 10 Rule 11, Order 12 Rule 7, Order 45 and Order 51 Rule 15 of the Civil Procedure Rules and craved for the following orders:
2. That this Honourable Court be pleased to vacate and set aside the ex-parte proceedings and subsequent orders entered against the Applicant on 31^st May 2024, and all other consequent orders thereto.
3. That this Honourable Court be pleased to reinstate the Judicial Review Application dated 3^rd February 2023, for disposal on merit.
4. That the costs of this application and incidental expenses thereto be provided for.
5. The Motion is supported by grounds on the face thereof and the Affidavit of Cindy Laura Awour Otieno sworn on 18^th June 2024. The crux of the Motion is that the order issued by this Court on 31^st May 2024, was issued after the Applicant was condemned unheard by allowing the ex-parte Applicant/Respondent’s application.
6. The Applicant avers that the ex-parte applicant’s application dated 3^rd February 2023, raises weighty legal and factual issues concerning public finance and management and public interest at large, thus the imminent risk of the Applicant/Respondent being denied an opportunity of performing its constitutional and statutory mandate is to the detriment of the public, on account of the said ruling.
7. The Applicant/Respondent further avers that the immediate and general long-term effect of the said Court orders is to further cripple the ability of the Applicant/Respondent to raise public funds and provide services.
8. The Respondent/ex-parte Applicant filed no response to the application.
9. Vide Court directions issued on 16^th July 2024, the parties were directed to canvass the motion application dated 18^th June 2024, by way of written submissions. Neither complied.

Analysis and determination

1. Upon due consideration of the pleadings and the applicable law, the issue that emerges for determination is whether the respondent/ applicant has made out a case for setting aside of the orders made herein on the 31^st May 2024.
2. Judicial review jurisdiction is sui generis, case law has posited that orders issued with finality in the exercise of the said jurisdiction namely mandamus, prohibition and certiorari are not amenable to recall, review and setting aside. See Biren Amritlal Shah & another versus Republic & 3 others [2013] eKLR. Further, the reliefs such as recall, review and setting aside are only available under suits that fall under the Civil Procedure Act procedures with the exception of Judicial Review. The jurisdiction that the Applicant has invoked to redress its grievances are not applicable to Judicial review that is a special jurisdiction which is neither civil nor criminal. See Stella Richard & 13 Others v DPP & 2 Others; Daniel Kyalo Lua & Another (Interested Parties) (2019) eKLR
3. Section 8(5) of the Law Reform Act does state that:

“Any person aggrieved by an order made in the exercise of the civil jurisdiction of the High Court under this section may appeal therefrom to the Court of Appeal.”

1. However, in Aga Khan Education Service Kenya Versus Republic & 3 others civil Appeal No. 257 of 2003, the Court of Appeal cautioned that the exercise of the power of recall, review and setting aside of orders issued under the Judicial review jurisdiction is a very restricted jurisdiction and will only be exercised very sparingly and in very clear- cut cases.
2. In the case of Methang’athia & 4 others versus District Land Adjudication and Settlement Officer Meru North (Nyambene) District and 3 others Nairobi Misc. Appl. 230 of 1993 [2000] KLR 500 it was held that “the High Court has no jurisdiction to stay, arrest, recall, review, set aside or quash a prerogative order which has already been made or granted in finality, as such an order is final and subject only to the right of appeal conferred by Section 8(5) of the Law Reform Act.
3. Drawing guidance from the foregoing judicial pronouncements, I find that the grant of the orders allowing made on 31^st May 2024 were final orders of certiorari and prohibition that dispensed with the application before the Court and as such this Court cannot set aside the same. The same can only be interfered with by the Court of Appeal in terms of Section 8(3) as read with Section 8(5) of the Law Reform Act.
4. In the result and save to the extent as hereinabove analyzed, the Applicant/Respondent’s application dated 18^th June 2024, lacks merit and is dismissed with no order as to costs.
5. This file is hereby marked as closed.
6. It is so ordered.

Dated and delivered at Bungoma this 9^th day of April 2025.

M.S.Shariff

Judge