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ELCAllowedJudicial Review (Miscellaneous) Application (Nyeri ELC) - chamber summons dated 28th September, 2020· [2021] KEELC 2903 (KLR)

Republic v County Government of Nyeri & another; Ex parte: Manyonge Wanyama & Associates LLP [2021] KEELC 2903 (KLR)

Environment and Land Court
16 June 2021
2,464 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nyeri court allowed a law firm to sue the county government over unpaid fees, ruling a missing certificate was a fixable technicality, not a dealbreaker.

What this practically means

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Executive summary

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The ex parte Applicant, Manyoge Wanyama & Associates LLP, sought leave under Order 53 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act to apply for mandamus compelling the Respondents to settle taxed advocate-client costs of Kshs.401,450 arising from its representation of the Respondents in Nyeri ELC JR No. 18 of 2017, taxed on 2nd October 2019 with a certificate of taxation issued on 22nd October 2019. The Respondents filed no substantive affidavit but raised a preliminary objection asserting non-compliance with Section 21 of the Government Proceedings Act and Order 29 rule 3 for want of a certificate of order against the government. The court distinguished the authorities relied on by the Respondents as obiter on that point, held that a certificate of taxation is distinct from a certificate of order against the government, and found the Applicant had not obtained the latter. Nonetheless, applying Article 159(2)(d) of the Constitution and Section 19(2) of the Environment and Land Court Act, the court held the omission curable and non-prejudicial, and overruled the preliminary objection. On the leave stage test from Republic v County Council of Kwale ex-parte Kondo, the court found prima facie evidence of retainer, taxation and non-payment, unchallenged by review or reference, and granted leave. Costs of the application and objection were ordered to abide the outcome of the substantive motion, with directions for filing and service within 21 days and mention on 22nd September 2021.

Key legal issues

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01

Whether failure to obtain a certificate of order against the government under Section 21 of the Government Proceedings Act defeats an application for leave to apply for judicial review

Holding

The preliminary objection fails; the omission is a curable procedural technicality and the Applicant was granted leave to file the certificate later.

Reasoning

The court distinguished a certificate of taxation from a certificate of order against the government, finding only the former exhibited. However, invoking Article 159(2)(d) of the Constitution and Section 19(2) of the Environment and Land Court Act, it held the omission was not fatal since no prejudice was demonstrated and the certificate could be filed after the substantive motion.

p. 3
02

Whether the Applicant made out a case for leave to apply for judicial review to compel payment of taxed advocate-client costs

Holding

Yes; prima facie evidence of retainer, taxation at Kshs.401,450 and non-payment despite demand satisfied the arguable-case threshold.

Reasoning

Applying the test in Republic v County Council of Kwale ex-parte Kondo, the court found prima facie evidence of the retainer, the taxation and non-payment, noting the Respondents never challenged the taxation by review or reference. The Applicant had no other lawful means of enforcing payment, so leave was granted.

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Legal principles established

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  • Leave to apply for judicial review is granted where the material shows an arguable case fit for further investigation at a full inter partes hearing.
  • A certificate of taxation is distinct from a certificate of order against the government, but absence of the latter at the leave stage is a curable procedural flaw.
  • Costs follow the event under the proviso to Section 27 of the Civil Procedure Act unless the court directs otherwise for good reason.

Court orders

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  1. 1.The Respondents' notice of preliminary objection dated 20th February, 2021 is overruled.
  2. 2.Leave granted to the Applicant to apply for judicial review in terms of order No. 1 of the chamber summons dated 28th September, 2020.
  3. 3.The Applicant to file the notice of motion for judicial review within 21 days and serve the Respondents.
  4. 4.The Respondents at liberty to file a response within 21 days upon service.
  5. 5.The Applicant granted leave to file a certificate of order against the government within 45 days upon filing the notice of motion.
  6. 6.Costs of the application and the preliminary objection to abide the outcome of the substantive application for judicial review.
  7. 7.Mention on 22nd September, 2021 to confirm compliance and give directions on the hearing of the substantive motion.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 53 rules 1, 2 & 4
  • Law Reform Act (Cap. 26)Sections 8 and 9
  • Government Proceedings Act (Cap. 40)Section 21
  • Civil Procedure Rules, 2010Order 29 rule 3
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Environment and Land Court ActSection 19(2)
  • Civil Procedure Act (Cap. 21)Section 27 (proviso)

Cases cited (4)

  • Jamleck Waweru Karanja v County Government of Nakuru
    [2020] eKLR
  • Republic v Permanent Secretary Office of the President Ministry of Internal Security and Another ex-parte Nassir Mwandihi
    [2014] eKLR
  • Republic v County Council of Kwale & Another ex-parte Kondo & 57 Others
    [1998] I KLR (E&L)
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Order 53 rules 1, 2 & 4 of the Civil Procedure Rules, 2010 and Sections 8 and 9 of the Law Reform Act (Cap. 26)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v County Government of Nyeri & another; Ex parte: Manyonge Wanyama & Associates LLP [2021] KEELC 2903 (KLR)", Case Analysis (2021). Judicial Review (Miscellaneous) Application (Nyeri ELC) - chamber summons dated 28th September, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2903/eng@2021-06-16

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