Case ID:167482

Republic v Attorney General Ex parte Applicant:

Jacqueline Wangui Ndirangu [2020] eKLR

Case Metadata

Case Number:

Judicial Review Miscellanous Application E052 of 2020

Parties:

Republic v Attorney General Ex parte Applicant: Jacqueline Wangui Ndirangu

Date Delivered:

28 Oct 2020

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Pauline Nyamweya

Citation:

Republic v Attorney General Ex parte Applicant:

Jacqueline Wangui Ndirangu [2020] eKLR

Court Division:

Judicial Review

County:

Nairobi

Case Outcome:

Chambers summons application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW MISCELLANOUS APPLICATION NO. E 052 OF 2020

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

BETWEEN

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

VERSUS

THE ATTORNEY GENERAL.......................................RESPONDENT

EX-PARTE APPLICANT:

JACQUELINE WANGUI NDIRANGU

RULING

1. This ruling is on an application by way of Chamber Summons dated 22

nd

October 2020, filed by the

ex parte

Applicant herein, who is seeking leave to apply for an order of mandamus to settle the decretal sum of Kenya Shillings Three Hundred and Seventy-Two Thousand Two Hundred and Seventy and Fifty-Four Cents (Kshs.372, 270.54/=) plus costs of the suit and Interest at the rate of 12% p.a. from the date of judgment on 16

th

June 2017, until payment in full.

2. The said application is supported by a statutory statement dated 22

nd

October 2020, and a verifying affidavit sworn on the same date by the

ex parte

Applicant. The main ground for the application is that a judgment was delivered in favour of the

ex parte

Applicant in

CMCC No. 5510 of 2010 -

Jacqueline Wangui Ndirangu vs The Honourable Attorney General

, wherein she was awarded the Applicant special damages in the sum of Kshs.183,278/= plus costs of the suit and interest thereon, and a Decree and the Certificate of Order against the Government extracted and served upon Respondent on 24

th

January 2018. However, that despite several requests to the Respondent to settle the decretal sum, he has failed, refused and/ or neglected to pay the same to the

ex parte

Applicant, and the appropriate mode of execution against him is by way of an order of mandamus.

3. The Applicant annexed copies of the certified judgment, decree and Certificate of Taxation issued in

Nairobi

CMCC No. 5510 of 2010 -

Jacqueline Wangui Ndirangu vs The Honourable Attorney General

on 16

th

June 2017, a Certificate of Order against the Government issued therein on 9

th

November 2017, and of letters to the Respondent requesting payment of the said decretal sum.

The Determination

4. I have considered the application dated 22

nd

October 2020 and the applicable law on leave to commence judicial review proceedings, which is

Order 53 Rule 1

of the Civil Procedure Rules. The reasons for the leave was 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 eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless, and 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.

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

Sharma vs Brown Antoine

(2007) I WLR 780

, that a ground of challenge is arguable if its capable of being the subject of sensible argument in court, in the sense of having a realistic prospect of success, however, that the test is flexible depending on the nature and gravity of the issues.

6. In the present application, the Applicant has provided evidence of the judgment and costs awarded in her favour in

Nairobi

CMCC No. 5510 of 2010 -

Jacqueline Wangui Ndirangu vs The Honourable Attorney General

, as against the Respondent, and demands made for payment of the said costs. To this extent I find that the

ex parte

Applicant has met the threshold of an arguable case, and is therefore entitled to the leave sought to commence judicial review proceedings of mandamus against the Respondent.

The Orders:

7. In the premises the Chambers Summons application dated 22

nd

October 2020 is allowed to the extent of the following orders:

I. The

ex parte

Applicant is

granted leave to

apply for an order of Mandamus to compel the Respondent to pay to it the

decretal sum of Kenya Shillings Three Hundred and

Seventy-Two Thousand Two Hundred and Seventy and Fifty-Four Cents (Kshs.372, 270.54/=) plus costs of the suit and Interest at the rate of 12% p.a. from the date of judgment on 16

th

June 2017, until payment in full

, being the decretal sum awarded to the

ex parte

Applicant in Nairobi

CMCC No. 5510 of 2010 -

Jacqueline Wangui Ndirangu vs The Honourable Attorney General

.

II.

The

costs of the Chamber Summons dated 22

nd

October 2020 shall be in the cause.

III. The

ex parte

Applicant shall file the substantive Notice of Motion

, and

shall serve the Respondent with (i) the Chamber Summons application dated

22

nd

October 2020

, (ii) the substantive Notice of Motion and submissions thereon, (iii) a copy of this ruling, and (iii) 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, and submissions on the substantive Notice of Motion within twenty-one (21) days from the date of service.

V. This matter shall be mentioned on

20

th

January 2021

to confirm compliance and 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

ex parte

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 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 at

judicialreview48@gmail.com

and

asunachristine51@gmail.com

.

VIII.

The service of pleadings and documents directed by the Court shall be by way of personal service

and

electronic 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 at

judicialreview48@gmail.com

with copies to

asunachristine51@gmail.com

.

IX.

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 to

judicialreview48@gmail.com

with copies to

asunachristine51@gmail.com

.

X.

T

he Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for mention on

20

th

January 2021

.

XI.

The Deputy Registrar of

the Judicial Review Division shall send a copy of this ruling to the

ex parte

Applicant by electronic mail by close of business on

Thursday, 29

th

October 2020

.

XII.

Parties shall be at liberty to apply.

8. Orders accordingly.

DATED AND SIGNED AT NAIROBI THIS 28

th

DAY OF OCTOBER 2020

P. NYAMWEYA

JUDGE