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ELRCStruck OutEx parte Chamber Summons dated 22nd November, 2024 (amended 5th March, 2025) arising from Kisumu ELRC No. 39 of 2013: Jared Omondi Ober and Another v County Government of Homa Bay· [2025] KEELRC 1305 (KLR)

Ober & another v County Government of Homa Bay & 3 others (Judicial Review E037 of 2024) [2025] KEELRC 1305 (KLR)

High Court of Kenya
7 May 2025
2,761 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The ex parte applicant, a former employee of Homa Bay Municipality who obtained a judgment of Kshs. 8,401,754 with costs and interest in Kisumu ELRC No. 39 of 2013 against the County Government of Homa Bay, sought an order of mandamus by Chamber Summons dated 22nd November 2024, amended on 5th March 2025, compelling three county officers to pay the decretal sum and taxed costs. The respondents opposed, contending the application was incompetent for non-compliance with Section 21 of the Government Proceedings Act (no Certificate of Order Against the Government), that no substantive application for mandamus was on record, and that the applicant had not exhausted other avenues of satisfying the decree. The court identified a single issue: whether the Chamber Summons was merited. Holding that the application was grounded on Sections 8 and 9 of the Law Reform Act and Order 53 Rules 1 and 2, the court found it incumbent on the applicant to show compliance. It endorsed the position (Ngaah J in Nation Media Group) that leave remains a requirement for judicial review post-2010. Since the amended application sought substantive mandamus orders rather than leave, and the applicant had not complied with Section 21 of the Government Proceedings Act, the court held the Chamber Summons fatally and incurably defective and struck it out with costs to the respondents on 7th May 2025.

Key legal issues

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01

Whether the ex parte Chamber Summons seeking mandamus was merited

Holding

Not merited; the application was fatally and incurably defective and was struck out

Reasoning

The applicant sought substantive orders of mandamus without first obtaining leave under Order 53. The amendment of 5th March, 2025 did not incorporate a prayer for leave as a sole prayer. The applicant also failed to comply with Section 21 of the Government Proceedings Act, having not obtained a Certificate of Order Against the Government, and made no reply controverting the respondents' grounds of opposition.

p. 6
02

Whether leave is still a requirement for judicial review applications in the post-2010 dispensation

Holding

Yes; the requirement of leave subsists notwithstanding the Constitution of Kenya, 2010 and the Fair Administrative Action Act

Reasoning

The court agreed with Nation Media Group v Media Council Complaints Commission (Ngaah J), endorsing the rationale that leave sifts out unmeritorious litigants and protects the integrity of court process. Since the applicant did not contest the requirement of leave, the court adopted that position.

p. 5

Legal principles established

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  • Leave to apply for judicial review orders remains a requirement under Order 53 despite the Constitution of Kenya, 2010 and the Fair Administrative Action Act
  • Parties are bound by their pleadings and a court cannot grant relief not sought
  • An applicant grounding an application on Order 53 must demonstrate compliance with the procedural prerequisites, including obtaining leave and a Certificate of Order Against the Government under Section 21 of the Government Proceedings Act

Court orders

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  1. 1.The ex parte applicant's Chamber Summons dated 5th March, 2025 is struck out
  2. 2.Costs to the respondents

Authorities

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Legislation

  • Law Reform ActSections 8, 9
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Sections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 53 Rules 1 and 2; Order 29; Order 21 Rule 1
  • Government Proceedings ActSections 21(1), 21(3), 21
  • Constitution of Kenya, 2010Article 159(2)(d); Article 48
  • Fair Administrative Action Act

Cases cited (19)

  • Republic V Permanent Secretary Ministry of State for Provincial Administration and Internal Security ex parte Fredrick Manoah Egunza
    [2012] eKLR
  • Jaribu Credit Transfers Ltd V Nairobi County Government
    [2018] eKLR
  • Republic V Principal Magistrates Court at Mavoko & Another Ex Parte Joseph Ole Lenku Government of Kajiado County & Another
    [2018] eKLR
  • Republic V Chief Magistrate's Court Milimani Commercial Court & 20 others Ex parte Fredrick Bett
    [2022] eKLR
  • Charles Pkiyach Kiyara V Lomerisiya Dungtom
    [2022] eKLR
  • Republic V Attorney General Ex Parte Kahugu Karebe
    [2012] eKLR
  • IRC V National Federation of Self-Employed and Small Business Ltd
    [1982] AC 617
  • R V Secretary of State for Environment ex parte Greater London Council
    [1985] Times 30 December
  • O'Reilly V Mackman
    [1983] 2 A.C 286
  • Cocks V Tnanet District Council
    [1983] 2 A C 286
  • Felix Kiprono Matagei V Attorney General; Law Society of Kenya (Amicus Curie)
    (2021) eKLR
  • James Gacheru Kariuki & 22 Others V Kiambu County Assembly & 3 Others
  • Nirmal Singh Sindhu & 8 others V Director General National Environment Management Authority & another; Lavington United Church (Interested Party)
    [2025] eKLR
  • County Government of Nyeri & another V Cecilia Wangechi Ndungu
    [2015] eKLR
  • Nation Media Group Ltd V Commissioners Media Council Complaints Commission; Njoroge & another (Interested Party)
    [2024] KEHC 3417 (KLR)
  • Galaxy Paints Ltd V Falcon Guards Ltd
    SC 91/2002
  • Joseph Nziu V Kenya Orient Insurance Co. Ltd
    [2015] eKLR
  • Daniel Mogire V South Nyanza Sugar Co. Ltd
    [2018] eKLR
  • Raila Amolo Odinga & Another V IEBC & 2 Others
    [2017] eKLR
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 53 Rules 1 and 2 of the Civil Procedure Rules, 2010

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, "Ober & another v County Government of Homa Bay & 3 others (Judicial Review E037 of 2024) [2025] KEELRC 1305 (KLR)", Case Analysis (2025). Ex parte Chamber Summons dated 22nd November, 2024 (amended 5th March, 2025) arising from Kisumu ELRC No. 39 of 2013: Jared Omondi Ober and Another v County Government of Homa Bay. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1305/eng@2025-05-07

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