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)
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
#Key legal issues
#Whether the Ex-Parte Applicant made out an arguable case for leave to apply for mandamus
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
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.
Whether CBK acted unlawfully, irrationally or in bad faith in insisting on compliance with its SOPs
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)
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.
Whether interim relief should be granted to avert collapse of County Assembly operations
Refused, as the Motion fell with the dismissal of the leave application
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.
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.The Chamber Summons application dated 26th January 2022 seeking leave to apply for judicial review (Order of Mandamus) is dismissed
- 2.The Notice of Motion dated 1st February 2022 also stands dismissed
- 3.No order for costs, both parties being government entities
- 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.