Republic v Principal Secretary, Ministry of Industrialization, Trade and Enterprise Development , Secretary, Public Service Commission; Chief Executive Officer Micro and Small Enterprise Authority Ex parte Charles Mwangi Waithaka & Charles Kalomba Shiraho [2021] KEHC 7308 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. MISC E060 OF 2021

IN THE MATTER OF AN APPLICATION FOR LEAVE FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION

BETWEEN

REPUBLIC......................................................................................APPLICANT

VERSUS

THE PRINCIPAL SECRETARY, MINISTRY OF

INDUSTRIALIZATION, TRADE AND

ENTERPRISE DEVELOPMENT...........................................1ST RESPONDENT

THE SECRETARY, PUBLIC SERVICE

COMMISSION…..............................................................2ND RESPONDENT

THE CHIEF EXECUTIVE OFFICER

MICRO AND SMALL ENTERPRISE AUTHORITY….....3RD RESPONDENT

EX PARTE APPLICANTS:

1.  CHARLES MWANGI WAITHAKA

2. CHARLES  KALOMBA  SHIRAHO

RULING

1.   The ex parte Applicants herein have filed an application by way of a Chamber Summons dated  22nd April 2021, seeking the following orders:

1. THAT this Application be certified urgent and service thereof be dispensed with in the first instance.

2. THAT leave be granted for the ex parte Applicants to apply for the following Judicial Review orders;

a)   An order of CERTIORARI to remove into this court and quash the decision of the 1st and 2nd  Respondents  to institute  disciplinary  proceedings  against  the  ex parte Applicants  for allegedly late submission  and failing to make clarifications  on  the 2019 Declaration  of Income, Assets and Liabilities.

b)   An order of PROHIBITION to remove into this court and prohibit the 1st and 2nd Respondents from instituting disciplinary proceedings against the ex parte Applicants for allegedly late submission and failing to make clarifications on the 2019 Declaration of Income, Assets and Liabilities.

3. THAT the grant of leave to operate as a stay of any reliance, use, implementing and/or enforcing the contents of the letters to the ex parte Applicants dated 14th  day of January 2020, 22nd day of February 2021 and 31st day of March 2021 from the 2nd  Respondent, 2nd  Respondent and 1st  Respondent respectively.

4. THAT costs of this Application be provided for.

2.  The said application is supported by a statutory statement dated 22nd April 2021, and two affidavits sworn on the same date by the ex parte Applicants. I have perused of the supporting documents, and in light of their content therein, and also given that there are some annexures that are missing, particularly the evidence of the impugned decisions relied upon by the 1st ex parte Applicant, I am of the view that the ex parte Applicants need to demonstrate that they have an arguable case.  The question of leave to commence judicial review proceedings against the Respondents therefore requires to be canvassed inter partes.

3.   I accordingly hereby direct and order as follows:

I.The ex parte Applicants shall serve the Respondents with theChamber Summons dated 22nd April 2021, (ii) skeletal submissions on the said Chamber Summons (iii) a copy of these directions and (iv) a hearing notice with ten (10) days of today’s date.

II.The Respondent and Interested Parties are granted leave to file and serve their responses to theChamber Summons dated 22nd April  2021, and skeletal submissions thereon within ten (10) days  of service by theex parte Applicants.

III.   The Chamber Summons dated 22nd April  2021 shall be heard virtually by video link on19th May 2021 at 3 pm,.

IV.  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 theex parte Applicant’s Chamber Summons dated 22nd April 2021 on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.

V.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.comandasunachristine51@gmail.com.

VI.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 to asunachristine51@gmail.com.

VII.The parties shall also be required to file their respective affidavits of service evidencing service on the Judiciary’s  e-filing system.

VIII.The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for a virtual hearingon 19th May 2021 at 3pm,and shall send the parties an electronic link for the hearing.

IX.   The Deputy Registrar of the Judicial Review Division shall send a copy of these directions to theex parteApplicantsby electronic mail by close of business on Thursday, 29th April 2021.

X.Parties shall be at liberty to apply.

4.   Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS  26TH DAY OF APRIL 2021

P. NYAMWEYA

JUDGE