Polycarp Wathuta Kanyugo, Michael Kabuga Njikari & Samuel Wanjohi v The County Government Of Kirinyaga [2014] KEHC 3197 (KLR)

REPUBLIC OF KENYA

In The High Court Of Kenya At Kerugoya

JUDICIAL REVIEW APPLICATION NO. 9 OF 2014

POLYCARP WATHUTA KANYUGO

MICHAEL KABUGA NJIKARI     …………………APPLICANTS

SAMUEL WANJOHI

VERSUS

THE COUNTY GOVERNMENT OF KIRINYAGA…..RESPONDENT

RULING

1.  By a Notice of Motion dated 4th March 2014 and filed in this court on even date under a certificate of urgency, the   four applicants who were described as the Republic, Polycarp Wathutha Kanyugo, Michael Kabuga Njikari and Samuel Wanjohi  sought among other prayers  leave to apply for the  Judicial Review remedies of mandamus, prohition  and certiorari against the respondent  The County Government of Kerugoya and  that  leave if granted,  operates  as stay until the application was determined .

2. Even before the court acted on the application, the applicants through their learned counsel Mr Muguku instructed by V.E. Muguku Muriu & Company Advocates purported to amend the application by filing two subsequent applications the first one being the amended notice of motion dated 5th March 2014 and what was described as an “Amended, Amended chamber summons application filed on 11th March 2014.

It is not disputed that the two subsequent applications  were filed without leave of the court and that the application filed on 11th March 2014 sought  to introduce fourty four(44) other applicants who were  not party to the original notice of motion.

3. It is important to note at this juncture that though the notice of motion dated 4th March2014 as its title suggests was supposed to be heard exparte, as expected of all applications seeking leave to institute Judicial Review proceedings, the applicants’ counsel on his own volition decided to serve the application on the Respondent.  The Respondent then appointed learned counsel M/S Wanjiru Wambugu to act for it in this matter and opposed the multiple applications filed by the applicants through a replying affidavit sworn by Peter K. Gachathi, the County Secretary on 20th March 2014   and a preliminary objection dated 11th March 2014.

4. On 25th March 2014, the parties appeared before me for directions and by consent of the parties, the court regularized the Respondent’s position by ordering that the applicant’s application seeking leave to institute judicial review proceedings be heard interparties.  It also transpired during that session that the Applicants had yet again filed two further affidavits without leave of the court.  The court however on application by Mr Muguku exercised its discretion by ordering that the further   affidavits be deemed to have been properly filed and that they be admitted as part of the court record.

5.  By consent of the parties, the applications were canvassed by way of written submissions.  And in the Respondent’s  submissions  filed on 12th May 2014, the Respondent took up an issue it had raised in paragraphs 5,6,7 of the replying affidavit  attacking the competence of the applications filed on  the 5th and 11th March 2014 respectively purporting  to amend  the notice of motion filed  on 4th March 2014.

As this objection was contested by the applicants who maintained that the amended applications were properly on record, I think it would be prudent to deal with the Respondent’s objection at this preliminary stage  in order to determine  whether the applications filed by the  applicants were properly before the court and whether all of them merits this  court’s consideration.

6. According  to the Respondent, the applications filed on 5th and 11th March were incompetent  as they amended the initial application dated 4th March 2014 without leave of the  court  contrary to the provisions of Order 53 Rule 4(2) of the Civil Procedure Rules which requires an applicant to seek leave of the court before amending its pleadings.

The applicants on their part argued that all the applications before the court were competent and properly on record.  Mr Muguku contended that the applications had been filed Exparte and could thus be validly amended without leave of the court; that in any case on 12th March 2014, the applicant orally applied in court for leave to amend the initial application which leave was granted thereby regularizing the subsequent applications.

This claim was denied by the Respondent who averred that the court on 25th March 2014 only regularized the further affidavits excluding the subsequent applications which remained irregularly on record.

7. Having considered the above submissions, I am inclined to agree with the position taken by the Respondent.  I have perused the court record particularly  the proceedings of 12th and 25th March 2014  and the same does not  bear any indication that the irregularity of filing the two subsequent  applications  purporting to amend the original notice of motion without leave of the court had been regularized by the court.

The record shows that on 12th March 2014, the parties appeared before the Deputy Registrar who only advised that a mention notice would be issued upon further directions by the court.   Again on 25th March 2014, the parties appeared before me for directions and upon application by Mr Muguku, the court excused the filing of two further affidavits by the applicants without leave of the court by deeming them as properly filed and served.

8. The court specifically indicated that it was only the further affidavits which had been admitted as part of the court record because on this date, no attempt was made to regularize the filing of the applications dated 5th and 12th march respectively without leave of the court.  And this is despite the fact that the two applications sought to introduce substantial amendments which would have fundamentally changed the nature and character of the initial application dated 4th March 2014. The submission by the applicants that the filing of the two applications had been regularized by the court is therefore false and misleading.

9. If the Applicants felt that the application dated 4th March 2014 was so wanting in both form and substance, my view is that they should have withdrawn the same to pave way for them to file a fresh application.  Even without looking at the substance or merits of the amended applications, to the extent that they had been filed without leave of the court, I find that they were improperly on record and they ought to be struck out.  In light of the foregoing, I hereby strike out the applications dated 5th and 12th March 2014 respectively.

The result of this it that the only valid application left on record for determination of the court is the initial notice of motion dated 4th March 2014 which I now turn to consider.  But before doing so, I wish to point out that as the parties had filed  their written submissions  when the applications I  have just struck out were  on the court record  albeit irregulary, I will disregard the affidavits and submission  made  by the parties  in support of  the two  applications and will confine  myself to only those pleadings  and submissions which are relevant to the application dated 4th March 2014.

10. Having said that, I now wish to consider the application dated 4th March 2014.  In this application, the applicants sought the following prayers (reproduced verbatim);

That leave be granted to the applicants to apply for an order ofMandamus, prohibition and certiorari against the Respondentherein and the leave operates as a stay until the determinationof the application.

That the Respondent  be prohibited from arbitrary increasingrents in its estate known as Kamukunji, Congo, Biafra and

forty rentals where the applicants and other tenants reside.

That the Respondent  do amend and repeal the KirinyagaCounty Government Finance Act 2013 Section 51 Rental houses in Congo Estate, Biafra Estate, Kamukunji Estate and Forty Rental Estate accord reasonable increase of rent to avoid reasonable increase of rent.

The application is supported by the verifying affidavit and further affidavits sworn by Polycarp Wathuta on 4th, 19th and 24th March 2014 respectively.  It is also supported by the statutory statement of facts dated 4th March2014.

THE APPLICANT’S CASE

11. The Applicant’s case as can be discerned from the pleadings and written submissions filed on their behalf by their counsel is that they were among others tenants in houses situated at Kamukunji, Biafra, Congo and Forty Rental estates in Kerugoya town.

The houses were prior to the promulgation of the Constitution of Kenya 2010 owned by the Kerugoya/Kutus Municipal council and the Kirinyaga County Council but with the introduction of devolution in the new Constitution as a system of governance in Kenya, when County Governments started their operations, the houses were automatically taken over by the county Government of Kirinyaga, the Respondent herein.

According to the applicants, prior to the taking over of the houses by the Respondent, they had executed tenancy agreements with the Kerugoya/Kutus Municipal and Kirinyaga County Council and had lived in the houses for many years paying the rents agreed upon in their respective tenancy agreements.  The rents ranged from Kshs 800 to kshs 2000 depending on the estate and size of the house.

12. After taking over the houses, the Respondent through the County Assembly introduced the Kirinyaga County Finance Bill 2013 which at Section 51 proposed to increase the applicant’s rents with a margin of 300 %.

It is the Applicants  case  that several consultative  meetings  were held between the residents   of Kirinyaga County  including  the Applicants, several county officials including the  member of the Kirinyaga County Assembly representing  Kerugoya ward and the County Governor in which  certain resolutions  were passed.  Among the resolutions passed was that the Finance Bill be suspended and it be subjected to further deliberations by all stake holders before it was enacted into law.

However, according to the applicants, the County Finance Bill was enacted into law becoming the Kirinyaga County Finance Act 2013 (the Finance Act) without taking into consideration the views of the Applicants and other residents of Kirinyaga County.

13. It was  the Applicants further contention  that the rental increase  was arbitrary and that the passing  of the Finance Act 2013 contravened Articles 10(2),174( c),184( c),176(b) and Article 199(1) of the Constitutionas well as Section 15,87,88 and 89 of the County Government  Act No. 17 of 2012  in that it was passed without adequate  consultations with the affected  tenants and this violated the Constitutional values  of good governance , transparency and  accountability as well as the principle of public participation and involvement in the passing of legislation guaranteed under Article 196(1) of the Constitution.

For the foregoing reasons, Mr Muguku urged the court to determine under Article 165(b) whether Section51 of the Kirinyaga County Finance Act 2013 was inconsistent with the Constitution. He urged the court to find that the application was meritorious and that is should be allowed with costs.

THE RESPONDENT’S CASE.

14. In opposing the application, the Respondent filed a preliminary objection dated 11th March 2014, a replying and further affidavit sworn by Peter K.Gacathi the Respondent’s County Secretary on 1st April 2014. It is the Respondent’s case that the applicant’s application was incompetent and was without merit.

In the replying and further affidavits, the deponent made a two pronged attack on the form of the applicant’s application. The first ground of attack was that the application was defective in that it was presented as a notice of motion offending Order 53 Rule 1(2) of the Civil Procedure Rules (the Rules) which provides that applications for leave to commence Judicial Review proceedings should be made through a chamber summons.

Secondly, that the Republic and the aggrieved parties have been named as Applicants in an application for Judicial Review.

15. On the merits of the application, the gist of the Respondent’s case was that besides the prayer seeking leave to institute judicial review proceedings being vague and ambiguous, the orders sought in the application were incapable of being granted.

The Respondent contended that the application offended the principle of separation of powers between the three arms of Government in so far as it sought orders to direct the Respondent to amend or repeal a piece of legislation; that the court cannot order amendment or repeal of legislation as this was the preserve of the legislative body in this case the County Assembly.

16. M/S Wanjiru, learned counsel for the Respondent further submitted that the court only had jurisdiction to determine the constitutionality or otherwise of legislation under Article 165(3) of the Constitution and that the court cannot also be called upon to adjudicate on what was the appropriate rent or what percentage of rental increment the Respondent could levy on the Applicants.

Lastly, the Respondent denied the applicant’s assertion that the Kirinyaga County Government Finance Act had been enacted without the involvement of members of the public.

The Respondent contended that there was full public participation in the passing of the Finance Act 2013 as required by the Constitution.

DETERMINATION

17.  Before delving into the merits of the Applicant’s case, I wish to quickly dispose of the preliminary issues raised by the Respondent with respect to the form of the instant application.  The Respondent was of the view that the application was defective since it was made through a notice of motion instead of a chamber summons as prescribed under Order 53 Rule 1(2) of the Rules; and that the Republic had wrongly been named as an Applicant.

Under Order 53 Rule 1, it is clear that no application for judicial review should be made unless leave of the court was sought and granted.  Order 53 Rule 1(2) provides that;

“An application for such leave as aforesaid shall be made Exparte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on”.

18. From the foregoing provision, there is no doubt that the Respondent was right in its submission  that  the correct application to file when seeking permission to commence  judicial review  proceedings is  a chamber summons and not a notice of motion like the one filed by the Applicants herein.  I also agree with the Respondent that the Republic should not have been named as an Applicant in this initial stage of the proceedings.  At the stage of seeking leave, only the aggrieved party or parties should appear as Applicants. It is only after  leave is granted that the actual judicial review proceedings  should be instituted  in the name  of the Republic  as the Applicant while the aggrieved party becomes the Exparte Applicant –See Farmers Bus Service & others Vs Transport Licensing Appeal Tribunal (1959)EA 779.

The rationale for this format was espoused in Mohammed Ahmed Vs Republic (1957) EA 525and also inJotham Mulati Welamondi Vs The Electoral Commission of Kenya (2002) I KLR 486.

Learned counsel for the Applicants in urging the court to dismiss the Respondent’s objection submitted that the anomalies cited amounted to procedural technicalities which should be disregarded under Article 159 (2) (d)  of the Constitution.

19. On my part, I find that presenting the application for leave in a Notice of motion as opposed to a chamber summons and including the Republic  as an Applicant  are irregularities of form which  have nothing to do  with the substance of the application  and as such, I agree with Mr Muguku that these are procedural technicalities  which this court in the exercise  of its discretion can disregard  under Article 159(2) (d) of the Constitution  which enjoins courts to administer  substantive justice .  I therefore find that the irregularities cited by the Respondent do not render the application incurably defective. I accordingly find no merit in the Respondent’s objections are hereby overruled.

20. Having disposed of the preliminary issues raised by the Respondent, I now wish to turn to the merits of the application. And this being principally an application seeking leave to commence judicial review proceedings, it is important to examine the purpose and the principles which guide the court in the exercise of its discretion in deciding whether or not to grant the leave sought. This discretion, as in all other cases must be exercised judiciously depending on the circumstances of each case.

21. It is now settled that the requirement that leave must be sought and obtained before making an application for judicial review is designed to protect the court process from abuse by mischievous litigants who may want to waste precious judicial time by filing frivolous applications which have no chance of success.

I agree with Waki J (as he then was) when he stated in Republic Vs County Council of Kwale & Another Exparte Kondo & 57 others Mombasa HCM CA NO. 384 of 1996that :

“ 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”

22. The rationale for this requirement was also expounded by  Odunga JinLady Justice Joyce Khaminwa Vs Judicial Service Commission &another (2014)e KLR when he expressed himself as follows;

‘‘The rationale for the requirement that leave be sought  and obtained is to exclude frivolous vexatious or applications which prima facie  appear  to be abuse  of the process of the court or those applications  which are statute barred.  However, leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case.   Leave stage  is therefore  a filter whose purpose  is to weed out  hopeless cases at the earliest possible time, thus saving the pressure on the courts and needless expense  for the applicant by allowing  malicious and futile claims  to be weeded  out or eliminated so as to prevent public bodies  being paralyzed  for months because of  pending court action which might turn out to be unmeritorious”.

See also the Court of Appeal decision in Mirugi Kariuki Vs Attorney General (1990-1994)EA 156 (1992) KLR 8 and in Republic Vs Communications Commission of Kenya & 2 others Exparte East Africa Television Network Ltd (2001) KLR 82,(2001) 1EA 199.

23. The golden thread running through  the aforesaid  authorities among others is that leave to commence judicial review  proceedings is not granted as a matter of course or as a mere formality. Though at the leave stage the applicant is not expected to  go into the  depth of the intended application for judicial review , the applicant must  satisfy the court that he or she has a prima facie arguable case which merits further  investigation by the court.  The question that then arises is whether the Applicants  have met the threshold for the grant of leave  as sought in their application.

24. The prayer for leave is contained in prayer 1 of the application which has been reproduced earlier in this ruling.This prayer, as observed by the Respondent is too general and vague as it fails to disclose to what end the judicial review  remedies of certiorari , mandamus  and prohibition would be applied in the event  that the  leave  sought is granted.

Judicial review is a challenge on administrative action or decision.  It invokes  the supervisory jurisdiction of the High Court  donated by Sections 8 and 9of the Law Reform Act  and Article 165 (6) of the  Constitution which makes it clear that the said  jurisdiction is to be exercised over decisions of subordinate courts,  any person , body or authority which exercises  a Judicial or quasi –judicial function but not over a superior court .

In Halisbury’s laws of England  4th Edition at page 91 , the learned author opines that Judicial review  is the process  by which the High Court exercises its supervisory  Jurisdiction over the proceedings  and decisions of inferior courts, tribunals and other bodies  or persons, who carry  out quasi-judicial functions or who are charged with  the performance of public acts and duties .

25. The three main judicial review remedies of certiorari, mandamus and prohibition are designed to achieve different purposes in furtherance of the course of justice.

The remedy of certiorari is meant to quash illegal administrative decisions, while the remedy of mandamus is aimed at compelling the performance of a statutory or public duty which a public body or officer has failed to perform without legal justification.

On the other hand, the order of prohibition is meant to stop or prevent the making of contemplated illegal decisions or actions or their implementation.

26. I have taken the trouble to briefly expound on the scope of judicial review and the nature and purpose  of its  remedies to make the point that it is important  for an applicant to sufficiently disclose  what decision  is sought to be quashed  by an order of certiorari or what  contemplated decision or action is sought to be prohibited by an order of prohibition or what duty the Respondent  is supposed to be compelled to perform by an order of mandamus  in the event that leave  is granted to institute Judicial Review proceedings .

It is only on the basis of such information that a court can be able to ascertain whether or not  the applicant has made out  a prima facie arguable  case which warrants  to proceed to the substantive stage.

In this case, for unexplained reasons, no such information was provided in prayer 1. The court was not told which decision was supposed to be quashed  by an order of certiorari, or what the Respondent  was supposed to be compelled to do or what  was to be prohibited.

27. Be that as it may , a look at prayer 2 and 3 leaves one wondering whether  they were meant  to espouse the basis of seeking leave to file proceedings for  orders of prohibition or mandamus or whether  they were meant to be  distinct  and separate prayers.

If they were meant to be independent prayers , then in my opinion, they are misconceived  and misplaced since  such prayers are substantive and  should not be made in an application for leave.  Such prayers can only be appropriately made in the substantive motion once leave is granted.

28. From those prayers however and from the corpus of the application, it is clear that the Applicants main grievance is that rents in the houses they occupy were arbitrary and exorbitantly increased by the Respondent  despite their protestations. The rent increment was effected through the passing of the Kirinyaga County Government Finance Act  2013  by the Kirinyaga county Assembly , the legislative organ of the Respondent.

Under Article 175 of the Constitution, County Governments are  allowed  to have reliable sources  of revenue  to enable them  govern and deliver  services  to  their people  effectively and under Article 185(2), ”  A county Assembly may make any laws that are necessary  for or incidental to the performance of the  functions  and exercise  of the  powers of the County Government under the fourth Schedule”

29. From the foregoing, it is clear that by increasing rent through the medium of legislation, the Respondent through its County Assembly was not exercising its administrative functions nor was it acting in a quasi - judicial capacity. I have no doubt in my mind that in passing  the Finance Act, the Kirinyaga County Assembly acted in the exercise of   its legislative function as mandated  by the Constitution and this took the matter of the rent increments complained  about  by the Applicants  outside the  purview of Judicial Review as shown above.

30. Even if it was to be assumed for the sake of argument that the Respondent’s decision of increasing rents in the houses leased to the Applicant’s among others was an administrative decision, I am still of the firm view that the remedy of judicial review  would still not be available  to the Applicants.   As can be seen from the depositions in the affidavits  sworn on behalf of the Applicants, the Applicants  were not actually opposed to the rental increments per se  but  they were aggrieved by the rate at which the increments were done  which in their view amounted to a 300% increment  which was too high.

In light of the foregoing, it would then appear that the Applicants were mainly questioning the merits of the Respondent’s decision. However, it is trite law that judicial review  is concerned not with the  merits of the decision  in question but with  the decision  making process – see Municipal Council of Mombasa Vs  Republic & another (2002) e KLR ;The Commissioners of Lands Vs Kuntse Hotel Limited  Civil Appeal No. 234 of 1995.

31. Another major complaint made by the Applicants was that the principles of inclusiveness and public participation which are enshrined in our Constitution and the County Government Act were never adhered to before the Finance Act was enacted. In my opinion, this was the crux of the Applicant’s case. This must be what informed the invitation to the court  by Mr Muguku  in his written submissions filed on 25th April 2014 to invoke its jurisdiction under Article 165(3) (d) of the Constitution  to determine whether  or not Section 51 of the Finance Act  2013 was consistent with  the Constitution.

Without making any finding whether the principle of public participation was observed by the Respondent, it is my view that the determination Mr Muguku  invited the court to make cannot be made within a judicial review application leave alone in an application seeking leave to institute such proceedings.

I am persuaded to find that the applicants chose the wrong forum to ventilate their grievances.  Instead of seeking to commence judicial review proceedings, the Applicants should have filed a Constitutional Petition.

32. I believe I have said enough to show that the Applicants have failed to demonstrate that they have a prima facie arguable case that merits the grant of leave to institute judicial review proceedings against the Respondent.

For the foregoing reasons, I am satisfied that the application dated 4th March 2014 is not merited and it is consequently dismissed.

33. On costs, since this was supposed to be an exparte application but the applicants chose to involve the Respondent  in its prosecution by serving  it with the application, it is only fair and just that the Respondent be awarded the costs of  the application .  It is so ordered.

C.W. GITHUA

JUDGE

DATED, SIGNED AND DELIVERED AT KERUGOYA THIS 15TH DAY OF AUGUST 2014.

In the presence:

Mr Makori holding brief for Mr Muguku  for the Applicants

Mr Igati Mwai holding brief for M/S Wanjiru Wambugu for the Respondent

Mwangi Court Clerk.