Republic v Mwato; County Government of Busia (Interested Party) (Environment and Land Judicial Review Case E002 of 2024) [2025] KEELC 7818 (KLR)

3. By his chamber Summons premised under Order 53 Rules 1(1) and (7) of the Civil Procedure Rules and other enabling provisions of the Civil Procedure Rules and Article 159 of the Constitution, the Exparte Applicant seeks the following orders: 1. That leave be granted to the Ex-parte Applicant enabling him to file a writ of mandamus compelling the Interested Party which is the County Government of Busia to settle the decretal sum of Kshs.215,919 plus costs and interest of 14% p.a. since 4th August 2022 within a specified period. 2. That costs of this application and of the main suit be met by the County Government of Busia. The application is based on the Ex-parte Applicant’s afidavit, statement of facts and verifying afidavit. The gist of the application is that judgment was entered for the Ex-parte Applicant against the Interested Party on 20th August 2022 in Busia CMC ELC No. E66 of 2020 in the sum of Kshs.231,919 and a decree was drawn for settlement. However, despite several correspondences, the Interested Party has refused to settle the decree although at one time it sought 30 days to do so. This is a case of refusal to settle rather than inability to pay. In the circumstances, an order compelling the Interested Party to pay would be appropriate. 4. Annexed to the application are the following documents: 1. Copy of certificate of order against the Interested Party. 2. Copy of a letter dated 4th October 2022 from the Interested Party to Mr Ashioya Advocate requesting for a copy of the judgment delivered on 29th August 2027. 3. Copy of a letter dated 15th December 2023 addressed to the Interested Party by Mr Ashioya Advocate No.tifying them of the Ex-parte Applicant’s intention to apply for warrant of arrest for the County Secretary, Chief Oficer Finance and County Executive Committee Member Finance for the No.n-payment of Kshs.215,919. 4. Copy of a similar letter to (3) above dated 12th September 2023. 5. Copy of a letter dated 18th October 2022 addressed to Mr Ashioya Advocate by the Interested Party stating that it has made progress towards payment of the decretal sum in Busia CMC ELC No. E66 of 2020. 5. The application is opposed and Mr Egesa Wambur at he Interested Party’s Principal Legal counsel has filed a replying afidavit dated 3rd March 2025 in which he has deposed, inter alia, that there is an active review application dated 3rd October 2023 pending in Busia CMC ELC No. E66 of 2022 seeking, inter alia, the setting aside of the judgment in that case. That this application by the ex-parte Applicant is designed to delay the application by the Interested Party in Busia ELC No. E66 of 2020 in which it is claimed that the Interested Party was denied an opportunity to be heard as it was No.t served. That the review application in Busia CMC ELC No. E66 of 2020 has been delayed because the trial magistrate has declined or resisted to proceed with it and neither has the Interested Party received the judgment of the subordinate Court in that case. That the Interested Party has No.t committed itself to pay the Ex-parte Applicant as purported. That if the orders sought herein are granted, the efiect will be to render the Interested Party’s review application in Busia CMC ELC No. E66 of 2020 a No.n-starter thus prejudicing its case. It is therefore of necessity that the Ex-parte Applicant’s chamber summons seeking leave be put in abeyance or struck out pending the hearing and determination of the Interested Party’s application for review in Busia CMC ELC CASE No. E66 of 2020. 6. Annexed to the replying afidavit are the following documents: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7818/eng@2025-11-06 2

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1. Copy of the No.tice of Motion dated 3rd October 2023 seeking orders of stay of execution and review of the orders issued in Busia CMC ELC No. E66 of 2020. 2. Copy of order issued on 6th October 2020 in Busia CMC ELC No. E66 of 2020. 3. Copy of proceedings in Busia CMC ELC No. E66 of 2020. 4. Copy of decree issued in Busia CMC ELC No. E66 of 2020. 5. Copy of a letter dated 21st December 2022 addressed to the Chief Magistrate’s Court Busia from the Interested Party’s solicitor seeking certified copy of the judgment in Busia CMC ELC CASE No. E66 of 2020. 6. List of authorities filed by the Interested Party in Busia CMC ELC No. E66 of 2020. 7. This Motion has been canvassed by way of written submissions filed by MR ASHIOYA instructed by the firm of Ashioya & Company Advocates for the Ex-parte Applicant and by MR EGESA WAMBURA the Interested Party’s Principal legal counsel. 8. I have considered the Ex-parte Applicants application for leave to file Judicial Review order of mandamus as well as the replying afidavit and submissions by counsel. 9. Order 53 Rule 1 of the Civil Procedure Rule provides that No. application for an order of mandamus, prohibition or certiorari shall be made unless leave therefore has been granted in accordance with the rule. The purpose for seeking leave was set out by WAKI J (as he then was) in the case of R.V. County Council Of Kwale & ANo.Ther Ex-parte Kondo & 57 Others Mombasa High Court Misc Civil Application No. 384 of 1996 [1998 KEHC 2 KLR] where at paragraph 12 he said: “ 12: The purpose of the application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration.” The Judge then went on cite Lord Diplockin the case of R. V. Inland Revenue Commissioners Ex-parte National Federation Of Self Employed And Small Business Ltd1982 AC 617 where he said the requirement that leave must be obtained before making an application for judicial review is designed to: “ Prevent the time of the Court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public oficers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.” Emphasis mine. Waki J (as he then was) went on to add in paragraph 13 of the case of R.V. County Council Of Kwale & Another Ex-parte Kondo& 57 Others(supra) that: “ Leave may only be granted therefore if on the material available the Court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the Applicant the test being whether there is a case fit for further investigation at a full inter-partes hearing of the substantive application for judicial review. It is an exercise of Courts discretion but as always it has to be exercised judicially.” Emphasis mine. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7818/eng@2025-11-06 3

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Has the Ex-parte Applicant herein satisfied the above principles? Or is it in the interest of justice, as deposed in paragraph 15 of the replying afidavit by Mr Egesa Wambura,that the Ex-parte Applicant’s Judicial Application be struck out or be put in abeyance pending the hearing and determination of the Interested Party’s application for review in BuisaCMC ELC CaseNo. E66 of 2020? That is the issue I need to interrogate at this stage. 10. Given the principles set out in the above precedents, I am No.t in the least, persuaded that the exparte Applicant’s complaint falls under the definition of those “by busy bodies with misguided or trivial complains or administrative error”. If anything, I am persuaded “that there is an arguable case for granting the relief claimed.” Further, the Ex-parte Applicant has surmounted “the test being whether there is a case fit for further investigation at a full inter partes hearing.” To begin with, it is No.t in doubt that the Ex-parte Applicant holds a decree issued by a competent Court for execution against the Interested Party in the sum of Kshs.215,919 going back to the year 2020 and which was never appealed. It has never been settled todate either. 11. Secondly, the Interested Party vide its letter dated 18th October 2022 and addressed to counsel for the Ex-parte Applicant stated the following in paragraphs 2, 3 and 4 thereof: “ Busia CMC ELC Case No. 66E of 2020 – Patrick Benson Mwato -v- Busia County Government on which there are issues. We will raise, the County has made progress in payments of the decretal sums in other cases and will continue to do so. However, in light of the transition, further payments will, as you are aware, be subject to specific supplementary budgets. We respectfully suggest that you revisit these matters in aNo.ther thirty (30) or so days when new oficers are expected to settle in ofice.” Counsel for the Interested Party has submitted in paragraph 21 of his submissions that by that letter, the Interested Party did No.t expressly undertake to settle the Ex-parte Applicant’s claim. That may be so that there was No. express undertaking to settle the claim. However, even after the expiration of the thirty (30) days, the Interested Party had No.t made any attempt to “revisit these matters” prompting counsel for the Ex-parte Applicant to write to the Interested Party on 15th December 2023 threatening to apply for warrants of arrest against the Interested Party’s Oficers. There was also No. express denial about the existence of the decree in Busia CMC ELC No. E66 of 2020 until that curt was moved by the Interested Party’s Motion dated 3rd October 2023 seeking to review the judgement. That is a live application pending in aNo.ther Court and so I must steer away from making any comments which may pre-empt the decision in that Court. I am satisfied that the chamber summons application dated 21st No.vember 2024 is for allowing. Directions shall be made shortly. 2. Intersted Party’s No.tice Of Motion Dated 1St September 2025: 12. By this Motion, the Interested Party seeks an order of stay of these Judicial Review proceedings pending the hearing and determination of it’s application dated 3rd October 2023 filed in Busia CMC ELC No. E66 of 2020. The gist of the application is that the Interested Party has filed an application to review the decision in Busia CMC ELC No. E66 of 2020 and it is only fair that these proceedings are stayed pending the hearing and determination of that application. In his afidavit in support of the Motion, MR EGESA WAMBURA Principal Legal counsel for the Interested Party has deposed, inter alia, that the Interested Party has opted to seek a review rather than an appeal against the judgment delivered in https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7818/eng@2025-11-06 4

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Busia CMC ELC No. E66 of 2020. That the Interested Party will be prejudiced if this Motion is No.t granted. Annexed to the Motion are the following documents: 1. Copy of the Motion dated 3rd October 2023 and filed in Busia CMC ELC No. E66 of 2020. 2. Copy of the order issued on 6th October 2023 in Busia CMC ELC No. E66 of 2020. 3. Copy of proceedings in Busia ELC No. E66 of 2020. 4. Copy of letter by the Interested Party addressed to the Chief Magistrate Busia seeking copy of judgment in Busia CMC ELC No. E66 of 2020. This Motion was No.t specifically responded to by the Ex-parte Applicant who also did No.t file any submissions. The Interested Party however filed their submissions in respect to this Motion just as it filed submissions in respect to the Ex-parte Applicants chamber summons. That No.twithstanding, this Court is enjoined to consider the merits or otherwise of any application in accordance with the law and judicial precedents. RINGERA J (as he then was) in the case of Global Tours & Travels Ltd Nairobi High Court Winding Up Cause No. 43 of 2000 had this to say on stay of proceedings: “ As I understand the law, whether or No.t to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice …. the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or No.t granting the order. And in considering those matters, it should bear in mind such factor as the need for expeditious disposal of cases, the prima facie merits of the intended appeal in the sense of No.t whether it will probably succeed or No.t but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.” Emphasis mine. The Interested Party also seeks an order for stay of execution herein. No. appeal has been filed against the judgment in Busia CMC ELC No. E66 of 2020. In principal therefore, and in accordance with the provisions of Order 42 Rule 6 of the Civil Procedure Rules which sets out the threshold of granting an order of stay of execution pending appeal, it must be clear that there can be No. basis for granting an order of stay of execution. Besides, the prayer for an order of stay of execution is also pending in Busia CMC ELC No. E66 of 2020 being the Motion dated 3rd October 2023. The Motion before this Court seeking a similar prayer is essentially therefore sub-judice. Section 6 of the Civil Procedure Rules provides that: “ No. Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.” If the Interested Party’s No.tice of Motion is still pending determination in Busia CMC ELC No. E66 of 2020, then the Motion herein and which seeks the same remedy of stay is clearly sub-judice. If that Motion has been heard and determined, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7818/eng@2025-11-06 5

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then this Motion is res judicata. Either way, this Court is estopped by law from determining the Motion herein. 13. It must also be remembered that the remedy of stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on the right to access to justice, the right to be heard without delay and overall, the right to a fair trial. Therefore, the test for stay of proceedings is higher and stringent – Kenya Wildlife Services v Hjames Mutembea Civil AppealNo. 40 of 2018. The judgment giving rise to this Motion was delivered on 4th August 2022 some three (3) years before this Motion was filed in September 2025. It has No.t been brought “expeditiously” as required by the above precedents. Again, I must refrain from touching on the merits or otherwise of the Motion pending in Busia CMC ELC No. E66 of 2020. 14. The bottom line, however is that weighing the pros and cons of the Motion by the Interested Party including the need for expeditious disposal of disputes and the optimum utilization of judicial time, I am No.t persuaded that I should exercise my discretion in allowing the Motion. The same is for dismissal. 15. The up-shot of all the above is that having considered the Exparte Applicant’s chambers summons dated 21st No.vember 2024 as well as the Interested Party’s No.tice of Motion dated 1st September 2025, I issue the following disposal orders: 1. The Interested Party’s No.tice of Motion dated 1st September 2025 is dismissed with costs. 2. The Ex-parte Applicant’s chamber summons dated 21st No.vember 2024 is allowed in the following terms: a. Leave is granted for the Exparte - Applicant to file and serve the substantive Motion seeking an order of mandamus upon the COUNTY GOVERNMENT OF Busia and any other Interested Party within 21 days from to-day. b. Costs in the cause. BOAZ N. OLAO JUDGE 6TH No.VEMBER 2025 RULING DATED, SIGNED AND DELIVERED ON THIS 6TH DAY OF NO.VEMBER 2025 BY WAY OF ELECTRONIC MAIL. BOAZ N. OLAO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7818/eng@2025-11-06 6

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