Adul & 49 others v Clerk, County Assembly of Kisumu & 2 others (Judicial Review E035 of 2024) [2025] KEELRC 400 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Chamber Summons for leave to apply for mandamus met the requirements of Order 53 Rules 1, 2 and 4 despite the alleged defects in the Verifying Affidavit and non-disclosure of the 49 parties
Leave was granted; the defects were not fatal because the 49 persons were not parties to the judicial review application (their counsel was) and the omission of a statement that no other proceedings were pending did not render the affidavit fatally defective where the parties were aware of the underlying suit.
The court relied on its earlier ruling dismissing the preliminary objection, holding that the 49 named persons were parties to the underlying ELRC suit but their counsel was the applicant in the judicial review, so they need not be specifically identified. The absence of the 'no other proceedings' averment was cured by Article 159(2)(d), since services were rendered, costs were taxed and certified, and the respondent had consented to pay gratuity. Authorities on the handmaiden nature of procedural rules fortified this view.
Whether the ex parte applicant demonstrated a case for leave to apply for mandamus to compel payment of taxed costs
Yes; the court was satisfied a case for leave was demonstrated given services were rendered and a Certificate of Taxation for Kshs.338,783.00 had issued.
Applying the principles in Republic v Permanent Secretary, Ministry of State for Provincial Administration Ex Parte Fredrick Manoah, and noting it was common ground that services were rendered and parties agreed, the court held it fair to allow the applicant to prosecute the substantive motion for outstanding costs of Kshs.338,783.00 certified in the ELRC matter.
Legal principles established
#- Rules of procedure are handmaidens of justice and lapses of form that do not affect jurisdiction or cause fundamental prejudice should not nullify proceedings
- Courts may invoke Article 159(2)(d) to cure procedural defects at the leave stage of judicial review
- The purpose of an application for leave to apply for judicial review is to eliminate frivolous, vexatious and hopeless applications
Court orders
#- 1.Leave granted to the ex parte applicant to apply for an order of judicial review in the nature of mandamus directed to the respondents compelling them to pay Kshs.338,783.00 being certified costs in Kisumu ELRC Cause No. 382 'A' of 2018
- 2.The Chamber Summons allowed with no orders as to costs
- Jurisdiction invoked
- Order 53 Rule 4(1) of the Civil Procedure Rules, 2010 (leave stage of judicial review); Article 159(2)(d) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adul & 49 others v Clerk, County Assembly of Kisumu & 2 others (Judicial Review E035 of 2024) [2025] KEELRC 400 (KLR)", Case Analysis (2025). Not stated in judgment (Chamber Summons dated 16th October, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/400/eng@2025-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.