Ibrahim Noor Hillowly v Principal Registrar, National Registration Bureau [2021] KEHC 9407 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. E1159 OF 2020

IN THE MATTER OF AN APPLICATION FORLEAVETO APPLY FOR AN ORDER OF MANDAMUS

BETWEEN

IBRAHIM NOOR HILLOWLY..................................................................................APPLI CANT

VER SUS

PRINCIPAL  REGISTRAR, NATIONAL REGISTRATION BUREAU.............RESPONDENT

RULING

1. The Applicant herein has filed an Amended Chamber Summons application dated 5th January 2021, seeking the following orders:

1. THAT the application be certified as urgent.

2. THAT the Respondent produce the Applicant's Identification Report   with the National Registration Bureau.

3. THAT the Applicant, Ibrahim Noor Hillowly, be granted leave to apply for an order of Mandamus directed to the Respondent, the Principal Registrar, National Registration Bureau, to validate the Applicant's Registration .

4. THAT the costs of this application be costs in the cause.

2. The application is supported by an amended statement dated 5th January 2021, and an affidavit sworn on the same date by the Applicant. In summary, the grounds for the application are that the Applicant is the holder of Kenyan National Identification card number 2624126, and was  acquitted  under    section  210  of  the  Criminal Procedure Code of various registration and immigration related offences in in Criminal Case No. 191 of 2010 - Republic vs Ibrahim Noor Hillowly.

3. The Applicant states that he has  subsequently been denied key Government services including renewal of his driving licence and getting the certificate of good conduct, for reasons of his illegal registration, and instructed his counsel to write to the director, National Registration Bureau to inquire on the  status of  his  identification with the bureau  by  requesting for the his identification report. However, that the said letter has not been responded to date.

4. The Applicant annexed a copy of his identity card and of an email forwarding the said letter dated 30th November 2020 to the Respondent.

5. The applicable law on leave to commence judicial review proceedings is Order 53 Rule 1 of the Civil Procedure Rules, which provides that no application for judicial review orders should be made unless leave of the court was sought and granted. The main reason for the leave as explained by Waki J. (as he then was), in Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others,Mombasa HCMCA No. 384 of 1996,is to ensure that an applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration.

6. It is also trite that in an application for leave such as the present one, the Court ought not to delve deeply into the arguments of the parties, but should make cursory perusal of the evidence before court and make the decision as to whether an applicant’s case is sufficiently meritorious to justify leave.

7. In the present application, the Applicant has provided evidence of his identity card, and of the request made to the Respondent for his identification report. To this extent I find that the Applicant has met the threshold of an arguable case, and is therefore entitled to the leave sought to commence judicial review proceedings against the Respondent. I however note that the order of production he seeks is a final order that cannot be granted at this stage.

The Orders

8. In light of the foregoing observations and findings, the ex parte Applicants’ Amended Chamber Summons dated 5th January 2021 is found to be merited to the extent of the following orders:

I.The Applicant’s Amended Chamber Summons application dated5th January 2021be and is hereby certified as urgent, and is hereby admitted for hearing ex parte.

II.TheApplicant isgranted leave toapply for an order of Mandamus to compel the Respondent toproduce the Applicant's  Identification  Report   with   the   National Registration Bureau.

III.TheApplicant isgranted leave toapply for an order of Mandamusdirected to the Respondent, the Principal Registrar, National Registration Bureau, to validate the Applicant's Registration.

IV. The costs of the Applicant’s Amended Chamber Summons application dated5th January 2021shall be in the cause.

V.  The Applicant shall file and serve the Respondent with (i) the substantive Notice of Motion and submissions thereon, (ii) the Amended Chamber Summons dated5th January 2021and its supporting documents, (iii) a copy of this ruling, and (v) a hearing notice, within twenty-one (21) days from today’s date.

VI. Upon being served with the said pleadings and documents, the Respondent shall be required to file its response to the substantive Notice of Motion and reply submissions within twenty-one (21) days from the date of service.

VII.  The hearing of the substantive Notice of Motion shall be held on15th April2021.

VIII.In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear and determine the Applicant’s substantive Notice of Motion on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.

IX.All the parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies by electronic mail to  the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.com and asunachristine51@gmail.com.

X.The service of pleadings and documents directed by the Court shall be by way of personal service andelectronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comwith copies toasunachristine51@gmail.com.

XI.The parties shall also be required to file and send to the Deputy Registrar of the Judicial Review Division their respective affidavits of service evidencing personal service, by way of electronic mail tojudicialreview48@gmail.comwith copies to asunachristine51@gmail.com.

XII.The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for hearing on 15th April2021.

XIII.The Deputy Registrar ofthe Judicial Review Division shall send a copy of this ruling to the ex parte Applicant by electronic mail by close of business on Thursday, 7th January 2021.

XIV.Parties shall be at liberty to apply.

9. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS  6TH DAY OF JANUARY 2021

P. NYAMWEYA

JUDGE