Automated Summary
Key Facts
Samuel E.O. Bosire, a retired Judge of the Court of Appeal, sought leave to commence judicial review proceedings against the Attorney General and the Principal Secretary of the Ministry of Lands and Physical Planning. He requested an order of mandamus compelling payment of Kshs. 836,557/- plus interest at Court rates from 1st June 2011, based on a Certificate of Order against the Government issued following the judgment in Nairobi ELC Case No. 491 of 2015 (Samuel E.O Bosire vs The Hon. Attorney General) delivered on 26th July 2018. The court granted leave, finding the Applicant had met the threshold of an arguable case.
Issues
The primary issue involves the Applicant, a retired Judge, requesting leave to commence judicial review proceedings against the Attorney General and Principal Secretary for failing to pay a decretal sum of Kshs. 836,557/- with interest, as mandated by a 2018 judgment in Nairobi ELC Case No. 491 of 2015. The Applicant argues that despite serving the Certificate of Order against the Government in September 2020, the Respondents have not fulfilled their obligation. The Court must determine whether the Applicant has demonstrated a sufficient arguable case to warrant granting leave for judicial review under Order 53 Rule 1 of the Civil Procedure Rules.
Holdings
- All parties shall file pleadings electronically via the Judiciary e-filing system and email copies to judicialreview48@gmail.com and asunachristine51@gmail.com.
- The Applicant's Chamber Summons dated 14th December 2020 is hereby certified urgent and is hereby admitted to hearing ex-parte in the first instance.
- The Applicant is granted leave to apply for an order of mandamus compelling the Respondents to pay the decretal sum of Kshs. 836,557/- with interest at Court rates from 1st June 2011, in terms of the Certificate of Order against the Government issued pursuant to the judgment delivered in Nairobi ELC Case No. 491 of 2015 - Samuel E.O Bosire vs The Hon. Attorney General delivered on 26th July 2018.
- This matter shall be mentioned on 15th April 2021 for further directions.
- The costs of the Chamber Summons dated 14th December 2020 shall be in the cause.
- Parties shall send affidavits of service by electronic mail to the Deputy Registrar of the Judicial Review Division at judicialreview48@gmail.com with copies to asunachristine51@gmail.com.
- Service of pleadings and documents shall be by personal service and electronic mail, with email copies to the Deputy Registrar at judicialreview48@gmail.com and asunachristine51@gmail.com.
- The Applicant shall file and serve the Respondents with the substantive Notice of Motion and submissions thereon, and shall also serve the Respondent with the Chamber Summons dated 14th December 2020, a copy of this ruling, and a mention notice, within twenty-one (21) days from today's date.
- Parties shall be at liberty to apply.
- The Deputy Registrar shall put this matter on the Division's causelist for mention on 15th April 2021.
- The Deputy Registrar shall send a copy of this ruling to the Applicant by electronic mail by close of business on Friday, 8th January 2021.
- The Court shall hear and determine the Applicant's substantive Notice of Motion on the basis of electronic copies of pleadings and written submissions due to COVID-19 pandemic safeguards.
- The Respondents shall be required to file their response to the substantive Notice of Motion and submissions thereon within twenty-one (21) days from the date of service by the Applicant.
Remedies
- The costs associated with the Chamber Summons dated 14th December 2020 are to be determined as part of the proceedings (in the cause).
- The Applicant's Chamber Summons was certified urgent and admitted to ex-parte hearing in the first instance.
- Leave was granted to apply for a mandamus order requiring the Respondents to pay the ex-parte Applicant the decretal sum of Kshs. 836,557/- with interest at Court rates from 1st June 2011, based on a prior judgment.
Legal Principles
The court applied the procedural requirement under Order 53 Rule 1 of the Civil Procedure Rules, emphasizing that leave to commence judicial review proceedings must be sought and granted before such actions can proceed. The ruling also references the court's discretion to assess whether an applicant's case is sufficiently meritorious for further consideration, as established in Republic vs. County Council of Kwale (Mombasa HCMCA No. 384 of 1996).
Precedent Name
Samuel E.O Bosire vs The Hon. Attorney General
Cited Statute
Civil Procedure Rules
Judge Name
P. NYAMWEYA
Passage Text
- The Deputy Registrar of the Judicial Review Division shall send a copy of this ruling to the Applicant by electronic mail by close of business on Friday, 8th January 2021.
- The Applicant shall file and serve the Respondents with the substantive Notice of Motion and submissions thereon, and shall also serve the Respondent with the Chamber Summons dated 14th December 2020, a copy of this ruling, and a mention notice, within twenty-one (21) days from today's date.
- The Applicant is granted leave to apply for an order of mandamus compelling the Respondents to pay to the ex-parte Applicant the decretal sum of Kshs. 836,557/- with interest at Court rates from 1st June 2011, in terms of the Certificate of Order against the Government issued pursuant to the judgment delivered in Nairobi ELC Case No. 491 of 2015 - Samuel E.O Bosire vs The Hon. Attorney General delivered on 26th July 2018.