Republic v Principal Secretary, Ministry of Interior and Cordination of National Government; Ex-parte Applicant:Regina Nduku Mutua, The administrator of the estate of Mulwa Nzioka (Deceased) [2020] KEHC 502 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. E1092 OF 2020

BETWEEN

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

VERSUS

THE PRINCIPAL SECRETARY, MINISTRY OF INTERIOR ANDCORDINATION

OF NATIONAL GOVERNMENT..............................................................RESPONDENT

EX PARTE APPLICANT: REGINA NDUKU MUTUA, The administratorof the estate

ofMULWA NZIOKA (Deceased)

RULING NO.2

1. The ex parte Applicant’s Chamber Summons dated 17th January 2020 was coming up for directions today. The ex parte Applicant is seeking the following orders therein:

a. THAT the Court be pleased to grant the applicant leave to apply for an order of mandamus directed to the Principal Secretary, Ministry of Interior and Coordination of National Government for failure to pay a court decree amount of Kshs 2,035,241. 27 in Milimani CMCC 7775 of 2014.

b. An order that the said the Principal Secretary Ministry of Interior and Coordination of National Government be personally present in court during the hearing of the application.

c. Costs of this application be provided for.

2. The said application is supported by a statutory statement dated 17th January 2020, and a supporting affidavit sworn on the same date by the ex parte Applicant. The main ground for the application is that on 19th December 2017, the court gave judgement in favour of the applicant herein in Milimani CMCC NO. 7775 of 2014 as against the Attorney General of the Republic of Kenya for and on behalf of the Ministry of Interior and Coordination of National Government, and that the decretal amount owing as at 22. 2.2019 is Kshs. 2,035,241. 27.

3. 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.

4. 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.

5. In the present application, the ex parte Applicant has provided evidence of the certified decree resulting from Judgment delivered in Milimani CMCC NO. 7775 of 2014and Certificate of Stated Costs issued therein dated 6th September 2018, a Certificate of Order against the Government issued therein on 31st May 2019, and of a letter dated 28th June 2019 forwarding the said decree and order to the Attorney General requesting payment.  The ex parte Applicant also filed a supplementary affidavit sworn on 29th October 2020 annexing a copy of the judgment delivered inMilimani CMCC NO. 7775 of 2014.

6. To this extent I find that the ex parte Applicant has met the threshold of an arguable case for an order of mandamus, and is therefore entitled to the leave sought to commence judicial review proceedings for an order of mandamus against the Respondent. However, no basis has been laid for the order sought requiring the Respondent to be personally present in Court, as no evidence was brought of any actions or non-compliance with orders of this Court on his part requiring such summons.

7. In light of the foregoing findings, the ex parte Applicant’s Chamber Summons dated 17th January 2020 is found to be merited to the extent of the following orders:

I. The ex parteApplicant isgranted leave to apply for an order of mandamus directed to the Principal Secretary, Ministry of Interior and Coordination of National Government compelling him to pay a decretal amount of Kshs 2,035,241. 27 in Milimani CMCC 7775 of 2014.

II.The costs of the Chamber Summons dated 17th January 2020 shall be in the cause.

III. The ex parte Applicant shall file and serve the Respondent with the substantive Notice of Motion and submissions thereon, and shall also serve the Respondent with the Chamber Summons dated17th January 2020, a copy of this ruling, and a mention notice, within twenty-one (21) days from today’s date.

IV. 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 submissions thereon within twenty-one (21) days from the date of service by the Applicant.

V. This matter shall be mentioned on 4th February 2021 for further directions.

VI. 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.

VII. All the parties shall file their pleadings 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.

VIII. 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.

IX. The parties shall also be required to send the respective affidavits of service by way of electronic mail to the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comwith copies to asunachristine51@gmail.com.

X. The Deputy Registrar ofthe Judicial Review Division shall send a copy of this ruling to the Applicant by electronic mail by close of business onThursday, 17th December 2020.

XI. The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for mention on 4th February 2021.

XII. Parties shall be at liberty to apply.

8. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS  14TH DAY OF DECEMBER 2020

P. NYAMWEYA

JUDGE