Wayrren Enterprises Limited v County Secretary, Nairobi City County & Chief Officer Finance/County Treasurer, Nairobi City County [2020] KEHC 5352 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW APPLICATION NO. 118 OF 2020

IN THE MATTER OF AN APPLICATION FOR LEAVE FOR JUDICIAL REVIEW ORDERS OF MANDAMUS

BETWEEN

WAYRREN ENTERPRISES LIMITED.………………………APPLICANT

VERSUS

THE COUNTY SECRETARY,

NAIROBI CITY COUNTY…..…………………………..1ST RESPONDENT

THE CHIEF OFFICER FINANCE/COUNTY

TREASURER, NAIROBI CITY COUNTY…...…………2ND RESPONDENT

RULING

1. The Applicant herein moved this Court in an application brought by way of Chamber Summons dated 28th May 2020, wherein it is seeking orders that the application be certified urgent and be heard ex parte in the first instance, and for leave to apply for an order of mandamus to compel the Respondents to satisfy the Certificate of Order in Milimani CMCC No. 5590 of 2018 together with interest thereon at the rate of 25% per annum from 28th October 2013 until payment in full. The Applicant also sought an order that the costs of the application be provided for.

2. The said application is supported by a statement dated 28th May 2020, and a verifying affidavit and supplementary affidavit sworn on the same date by Berline Adhiambo, the Applicant’s Managing Director.

3. The main ground for the application is that the Applicant has a Certificate of Order against the Respondents which they are not willing to satisfy, and which remains unsatisfied since 12th March 2020.

4. The Applicant annexed copies of the pleadings filed in Milimani CMCC No. 5590 of 2018, and a Certificate of Order against the Government issued therein on 12th March 2020. The Applicant has averred in its supporting affidavits that the matter in Milimani CMCC No. 5590 of 2018 went to full trial, and judgment was delivered therein in its favor on 14th December 2018.

5. However, the Applicant has not annexed a copy of the said judgment, which is the main fact that gives rise to the Certificate of Order against the Government it is relying upon, and orders of mandamus sought. In the circumstances I am unable to grant leave at this stage as the Applicant has not shown an arguable case.

6. In the premises I direct and orders as follows:

i. The Applicant is granted leave to file a supplementary affidavit annexing a certified copy of the judgment deliveredon 14th December 2019inMilimani CMCC No. 5590 of 2018,  within thirty (30) days of today’s date.

ii. The Applicant shall serve the Respondents with (i) theChamber Summons dated 28th May 2020 and its supporting documents, (ii) its supplementary affidavit, (iii) skeletal submissions on the Chamber Summons dated 28th May 2020, (iv) a copy of these directions and (v) a hearing notice with the said twenty-one (21) days.

iii. The Respondents are granted leave to file and serve their response to theChamber Summons dated 28th May 2020 and skeletal submissions thereon within twenty-one (21) days of service by the Applicant.

iv. The Chamber Summons dated 28th May 2020 shall be  heard on20thJuly 2020.

v. 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 Chamber Summons dated 28th May 2020 on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.In this respect, the Applicant shall avail an electronic copy in word format of the said Chamber Summons without the annexures within thirty (30) days of today’s date.

vi. The parties shall file and avail their pleadings, applications and written submissions electronically, by sending them to  the Deputy Registrar of the Judicial Review Division atjudicialreview48@gmail.comwith copies to asunachristine51@gmail.com.

vii. The electronic copies of pleadings and documents sent by the parties shall be clearly and correctly titled to indicate the J.R Case Number, the description of the Party sending it (that is whether the Ex Parte Applicant, Respondent or Interested Party), and the nature of the pleading or document.

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 toasunachristine51@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 toasunachristine51@gmail.com.

x. The Deputy Registrar ofthe Judicial Review Division shall send a copy of this ruling and the extracted orders to the Applicant by electronic mail by close of business on Wednesday,3rd June 2020.

xi. The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for hearing on 20thJuly 2020, and bring it to the attention of a Judge in the Division on that date for directions.

xii. Parties shall be at liberty to apply.

7. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS  2ND DAY OF JUNE 2020

P. NYAMWEYA

JUDGE