1. Saboke General Construction the ex- parte applicant herein filed the application dated 3.9. 24 seeking leave to Institute Judicial review proceeding on the nature of mandamus against the respondents for failure to satisfy the decree (pursuant to arbitrators award dated 20.5.21 )in the sum of Ksh. 34,131 , 922 /= plus interest at 12% in Kisii High Court Misc E045 of 2021.
2. Richard Ombati the director of the ex-parte applicant swore the verifying affidavit herein on 3.9.24 and told this court that despite demand the respondents have refused to satisfy the said decree and hence their intent to file mandamus proceedings to compel the respondents to satisfy the said decree.
3. Also that the expart6e applicant filed a Bill of Costs after the judgment and the same was taxed at Ksh. 477,267.60/=
4. He annexed a copies of the award , certificate of taxation , demand notice and certificate of order against the Government decree RO -1, RO -2 , RO-3 and 4 ).
5. Further that despite the said demand the respondents have failed and or neglected to satisfy said certificate of order.
6. 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 http://www.kenyalaw.org - Page 2/5 Republic v Law Society of Kenya & another Ex Parte Neddie Eve Akello; Marianne Jebet Kitany (Interested Party) [2020] eKLR to be exercised judicially”.
7. I have carefully considered the application, the annexed order adopting the award , certificate of taxation , certificate of order and demand notice issued to the respondents and iam satisfied at this stage that the applicant has an arguable case against the respondents.
8. Though the application was served and the respondent replied , the both the ex-parte applicant and the respondent jumped ship as it is trite law that application for leave to file judicial review proceedings is exparte by its nature and it only the substantive application which should be served upon the respondents
9. In the upshot I issue the following orders in respect to the application dated 3.9.24 ;-
10. Leave is hereby granted to the ex-parte applicant to file and serve the substantive motion for mandamus against the respondents within 7 days from today . (In terms of prayer 1 of the application )
11. Mention 5.6.25
12. Costs be in the cause .
T,A ODERA
JUDGE
13.5.25
Delivered Virtually Via teams Platform in the presence of –
Mr Ochieng for ex-parte applicant .
N/A for respondent .
2. Richard Ombati the director of the ex-parte applicant swore the verifying affidavit herein on 3.9.24 and told this court that despite demand the respondents have refused to satisfy the said decree and hence their intent to file mandamus proceedings to compel the respondents to satisfy the said decree.
3. Also that the expart6e applicant filed a Bill of Costs after the judgment and the same was taxed at Ksh. 477,267.60/=
4. He annexed a copies of the award , certificate of taxation , demand notice and certificate of order against the Government decree RO -1, RO -2 , RO-3 and 4 ).
5. Further that despite the said demand the respondents have failed and or neglected to satisfy said certificate of order.
6. 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 http://www.kenyalaw.org - Page 2/5 Republic v Law Society of Kenya & another Ex Parte Neddie Eve Akello; Marianne Jebet Kitany (Interested Party) [2020] eKLR to be exercised judicially”.
7. I have carefully considered the application, the annexed order adopting the award , certificate of taxation , certificate of order and demand notice issued to the respondents and iam satisfied at this stage that the applicant has an arguable case against the respondents.
8. Though the application was served and the respondent replied , the both the ex-parte applicant and the respondent jumped ship as it is trite law that application for leave to file judicial review proceedings is exparte by its nature and it only the substantive application which should be served upon the respondents
9. In the upshot I issue the following orders in respect to the application dated 3.9.24 ;-
10. Leave is hereby granted to the ex-parte applicant to file and serve the substantive motion for mandamus against the respondents within 7 days from today . (In terms of prayer 1 of the application )
11. Mention 5.6.25
12. Costs be in the cause .
T,A ODERA
JUDGE
13.5.25
Delivered Virtually Via teams Platform in the presence of –
Mr Ochieng for ex-parte applicant .
N/A for respondent .