Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedJudicial Review Case No. E007 of 2022· [2022] KEELRC 646 (KLR)

Republic v Central Bank of Kenya Ex parte Nairobi City County Assembly Services Board; Office of the Clerk of the County Assembly of Nairobi (Interested Party); Edward Ombwori Gichana & another (Intended Interested Parties) [2022] KEELRC 646 (KLR)

High Court of Kenya
28 February 2022
5,575 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

#

The High Court refused to force the Central Bank of Kenya to change county assembly bank signatories, holding that no one can override the Bank's security procedures.

What this practically means

#

Executive summary

#
The Nairobi City County Assembly Services Board, by Chamber Summons dated 26 January 2022, sought leave to apply for an Order of Mandamus compelling the Central Bank of Kenya to effect signatory and mandate changes on the Nairobi City County Assembly's IB accounts, and by Notice of Motion dated 1 February 2022 sought interim orders for partial access to the accounts and introduction of new signatories to avert collapse of County operations. The dispute arose after Court of Appeal orders restrained the then Clerk, Mr Edward Ombwori Gichana, and successive acting Clerks were appointed; CBK refused to effect changes pending compliance with its Standard Operating Procedures, including surrender of the IB Token by the outgoing Clerk and a proper handover. The Applicant alleged bad faith, illegality, bias, irrationality and disproportionality. CBK maintained it had not refused to act but required compliance with SOPs applicable to all government entities, grounded in the constitutional principles of public finance. Applying the leave test that an arguable case be shown without delving deeply, the court found the Applicant was indirectly seeking exemption from SOPs it had not impugned; that it had not taken sufficient steps to compel Mr Gichana to hand over; that Mr Castro's authorisation by the County Assembly was unconfirmed; and that public funds were at stake. Leave was refused, the Motion consequently stood dismissed, and, both parties being government entities, there was no order for costs.

Key legal issues

#
01

Whether the Ex-Parte Applicant made out an arguable case for leave to apply for mandamus

Holding

Leave was refused: the Applicant was in effect seeking an exemption from CBK's SOPs, which it had not impugned, and had not taken sufficient steps to compel the outgoing Clerk to hand over the IB Token

Reasoning

The court applied the leave test from Republic v County Council of Kwale ex parte Kondo and Patel Ravji Lalji: an arguable case fit for further investigation, without delving deeply. It found the Applicant had only written letters and a late letter to the DCI, had not joined Mr Gichana, and had not confirmed Mr Castro's approval by the County Assembly. Public funds were at stake and CBK's caution was reasonable.

p. 8
02

Whether CBK acted unlawfully, irrationally or in bad faith in insisting on compliance with its SOPs

Holding

No: the SOPs are policies under Section 4A(1)(d) of the CBK Act, applied across the board, and CBK is independent under Article 231(3)

Reasoning

The court held that directing CBK to make an exception to its SOPs, which the Applicant had not challenged, would offend the Constitution. The SOPs ensure accountability over public funds; the IB tokens are accountability instruments and a proper handover is required so that outgoing mandate holders lose access.

p. 7
03

Whether interim relief should be granted to avert collapse of County Assembly operations

Holding

Refused, as the Motion fell with the dismissal of the leave application

Reasoning

Since leave failed, the suit and consequently the Motion failed. The court also noted the Applicant's seven-month delay in coming to court and that alternative remedies, including compelling the outgoing Clerk through the DCI, had not been exhausted.

p. 8

Legal principles established

#
  • Leave for judicial review is granted only where, without going into depth, the court finds an arguable case fit for further investigation at a full inter partes hearing
  • Mandamus compels performance of a statutory public duty owed to a party with a legal right to its performance
  • Under Article 231(3), the Central Bank is not under the direction or control of any person or authority in performing its functions

Court orders

#
  1. 1.The Chamber Summons application dated 26th January 2022 seeking leave to apply for judicial review (Order of Mandamus) is dismissed
  2. 2.The Notice of Motion dated 1st February 2022 also stands dismissed
  3. 3.No order for costs, both parties being government entities

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 47, 48, 159(2)(d), 201, 231(1), 231(2), 231(3), Chapter 12
  • Fair Administrative Actions ActSections 4, 5, 7, 8, 9, 10 & 11
  • Statutory Instruments ActSections 2, 3, 11 & 22
  • Civil Procedure RulesOrder 53 Rule 1(1) & (2), Order 51 Rule 1, Order 21 Rule 1
  • Civil Procedure ActSection 63, Section 1B
  • County Government Act No. 17 of 2012Sections 12 and 13
  • Central Bank of Kenya Act, Chapter 491Sections 3(1), 4(1), 4A(1)(d)
  • Public Finance Management Act No. 18 of 2012Sections 148(4), 148(2), 149

Cases cited (4)

  • Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others
    Mombasa HCMCA No. 384 of 1996
  • Patel Ravji Lalji & another v Attorney General & 3 others
    [2021] eKLR
  • Republic v Kenya National Examinations Council Ex parte Gathenji & 8 Others
    Civil Appeal No. 234 of 1996
  • County Assembly of Service Board of West Pokot v Governor County Government of West Pokot & 3 others
    [2021] eKLR
Jurisdiction invoked
Order 53 Rule 1(1) & (2) of the Civil Procedure Rules, Article 47 of the Constitution and the Fair Administrative Actions Act, 2015 (judicial review leave application)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Central Bank of Kenya Ex parte Nairobi City County Assembly Services Board; Office of the Clerk of the County Assembly of Nairobi (Interested Party); Edward Ombwori Gichana & another (Intended Interested Parties) [2022] KEELRC 646 (KLR)", Case Analysis (2022). Judicial Review Case No. E007 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/646/eng@2022-02-28

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