Republic v Clerk, County Assembly of Homa Bay & 2 others; Julius Nyambok & another (Interested Parties) Ex parte Michael Nyangi & another [2020] KEELRC 134 (KLR)

The Court held that leave was granted ex parte and that Order 53 Rule 4 makes it mandatory for the subsequent Notice of Motion to be accompanied by the Statutory Statement and the affidavits used at the leave stage. The applicants instead filed fresh affidavits and exhibited neither document, disadvantaging the Respondents. There were also no affidavits of service on record for the Interested Parties. These defaults, combined with the applicants' conduct in filing serial applications, disentitled them from discretionary relief.

Relying on Halsbury's Laws of England, the Court noted that certiorari, prohibition and mandamus are discretionary remedies. The Court may consider the conduct of the applicant, including undue delay, unmeritorious conduct and the effect of granting relief. The ex-parte applicants kept filing application after application, preventing determination of pending applications on the merit, and there was prima facie evidence they had retained an advocate without a valid practising certificate.

Owiti, Otieno & Ragot Advocates filed a Notice of Appointment although an advocate (Lumumba & Ayieko) was already on record, requiring a Notice of Change of Advocates. The firm of Odinga Oboge Advocates purported to file contempt motions and further submissions after Omondi, Abande & Co. Advocates had come on record. Both sets of documents were treated as irregular or a nullity. There was also prima facie evidence that a person without a valid 2020 practising certificate was retained and that pleadings were signed by a person not in the LSK database.