Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCStruck OutJudicial Review proceedings commenced 15 December 2023 (Cause No. 30 of 2020 underlying judgment)

Republic v Secretary, County Government of Kisumu & another; Mwamu (Exparte) (Judicial Review E041 of 2023) [2024] KEELRC 601 (KLR)

Employment and Labour Relations Court
13 March 2024
RSRADIDO STEPHEN
365 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The ex-parte applicant, James Aggrey Mwamu, obtained leave on 30 November 2023 to commence judicial review proceedings against the Secretary and the Chief Officer, Finance, of the County Government of Kisumu. The proceedings, issued on 15 December 2023, sought an order of mandamus compelling the Respondents to satisfy a judgment of 1 February 2023 in Cause No. 30 of 2020 awarding him Kshs 1,470,000/- against the County Government, together with taxed costs of Kshs 303,745/-. A Certificate of Order under section 21(1) of the Government Proceedings Act had been issued and served on 1 February 2023, and a Certificate of Costs issued on 11 April 2023. The Respondents were served with the Motion on 23 January 2024 but did not participate; the applicant filed submissions on 26 February 2024. Despite having granted leave, the court re-examined the leave application and the Motion and found that the applicant had failed to comply with Order 53 Rule 1(2) of the Civil Procedure Act, which requires an ex-parte applicant to file a Statutory Statement setting out the applicant's name and description, the reliefs sought and the grounds. The Statutory Statement was absent both from the leave application and from the Motion. The court therefore declared the Motion incompetent and struck it out. Because the Respondents did not take part in the proceedings, the court made no order as to costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Motion for an order of mandamus compelling the Respondents to settle the decretal sum and costs is competent
  2. 2.Whether the ex-parte applicant complied with Order 53 Rule 1(2) of the Civil Procedure Act by filing a Statutory Statement with the leave application

Key legal issues

#
01

Compliance with Order 53 Rule 1(2) - requirement of a Statutory Statement

Holding

The Motion was incompetent because the Statutory Statement was missing both in the leave application and in the Motion itself

Reasoning

The court re-examined the leave application and the notice of motion despite leave having been granted. Order 53 Rule 1(2) of the Civil Procedure Act obliges an ex-parte applicant to file, with the leave application, a Statutory Statement setting out the applicant's name and description, the reliefs sought and the grounds. The ex-parte applicant failed to file this document, and it was also absent from the Motion. The court therefore found itself constrained to strike out the Motion as incompetent.

p. 3

Legal principles established

#
  • An ex-parte applicant in judicial review proceedings must file, together with the leave application, a Statutory Statement setting out the name and description of the applicant, the reliefs sought and the grounds for seeking such relief, and failure to do so renders the application incompetent

Court orders

#
  1. 1.The Motion dated is struck out with no order on costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

RS
majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Act (leave granted 30 November 2023 to commence judicial review proceedings)

Relief refused

#

Order of mandamus compelling the Respondents to settle the decretal sum of Kshs 1,470,000/- together with taxed costs of Kshs 303,745/-

The Motion was incompetent because no Statutory Statement was filed either with the leave application or with the Motion, as required by Order 53 Rule 1(2) of the Civil Procedure Act

p. 3

Costs

No order on costs, since the Respondents did not participate in the proceedings

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The ex-parte applicant did not comply with Order 53 Rule 1(2) of the Civil Procedure Act which requires an ex-parte applicant to file together with the leave application a copy of a Statutory Statement setting out the name and description of the applicant, the reliefs sought and the grounds for seeking such relief.
p. 3Mandatory content of judicial review leave applications
The Statutory Statement is also missing in the instant Motion and the Court is constrained to find the Motion incompetent.
p. 3Competence of the Motion
The Motion dated is struck out with no order on costs, since the Respondents did not participate in the proceedings.
p. 3Final orders and costs

Issues in the judgment

#
minor

The Motion is referred to as 'dated' without a date ever being stated, and the case number of the judicial review proceedings is not given; the underlying suit (Cause No. 30 of 2020) is an employment cause though the proceedings are titled judicial review

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Secretary, County Government of Kisumu & another; Mwamu (Exparte) (Judicial Review E041 of 2023) [2024] KEELRC 601 (KLR)", Case Analysis (2024). Judicial Review proceedings commenced 15 December 2023 (Cause No. 30 of 2020 underlying judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/601/eng@2024-03-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.