Republic v Seme Sub County Social Development Ofice; Otieno & 2 others (Interested Parties); Owiti & another (Ex parte Applicants) (Judicial Review Application E029 of 2024) [2025] KEHC 16711 (KLR) (30 October 2025) (Ruling) Neutral citation: [2025] KEHC 16711 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU JUDICIAL REVIEW APPLICATION E029 OF 2024 JM OMIDO, J OCTOBER 30, 2025 BETWEEN REPUBLIC ................................................................................................. APPLICANT AND SEME SUB COUNTY SOCIAL DEVELOPMENT OFFICE ............ RESPONDENT AND FRANCIS RALINGO OTIENO ............................................. INTERESTED PARTY GEORGE OTIENO OBWAGO ................................................ INTERESTED PARTY ELIZABETH ATIENO ORWA (ALL SUED AS THE CHAIRMAN, SECRETARY AND TREASURER RESPECTIVELY OF KOJWANG' UNITED DEVELOPMENT COMMUNITY BASED ORGANIZATION) .......................... INTERESTED PARTY AND ANTHONY OWITI ............................................................. EX PARTE APPLICANT JOHN DAWA ARODI .......................................................... EX PARTE APPLICANT RULING 1. The instant judicial review proceedings were commenced vide the chamber summons application dated 26th October, 2024, through which the ex parte Applicants sought for leave to file an application seeking for the judicial review order of mandamus against the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16711/eng@2025-10-30 1
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2. When the application was placed before this court (Hon. Lady Justice M.S. Sharifi) on 31st October, 2024, the learned Judge issued the following directions: “ The application dated 26th October, 2024 is not certified urgent. I direct the Applicant to serve the Respondents and Interested Parties for inter partes directions on 4th December, 2024. Registry to notify the Applicants’ Counsel of these directions”. 3. On 4th December, 2024, my sister Judge issued the following further directions on the application for leave to commence judicial review proceedings: “ All parties have filed responses to the Chamber Summons dated 26th October, 2024. I direct that the application which seeks leave to apply for Judicial Review orders to be canvassed by way of written submissions. The Applicants will have 14 days of today to file and serve written submissions. The Respondents and Interested Parties will have 14 days of date of service to file and serve written submissions. Mention before High Court 2 on 22nd January, 2025 to confirm compliance and fix a ruling date.” 4. It is pursuant to the above orders/directions that the matter was placed before me for purposes of taking further directions following the transfer of Sharifi J. to another station and I am now required to consider the application by the ex parte Applicants seeking leave to commence judicial review proceedings. 5. Although my predecessor issued substantive directions as to the manner in which the application is to proceed whereby she invited the Respondent and the Interested Parties to participate in the application, I will take a divergent view and course in the manner that I will handle and determine it for the reason that in my understanding of the applicable law, the application for leave ought to be ex parte in nature as it is a precursor to the main judicial review application. 6. The relevant provision to that end is Order 53 Rule 1(1) and (2) of the Civil Procedure Rules. Let us read the provisions: Order 53. Rule 1. Applications for mandamus, prohibition and certiorari to be made only with leave 1. No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule. 2. An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by — (a) a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and (b) affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application. (Underlined emphasis). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16711/eng@2025-10-30 2
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7. It is clear from the above provision that an application for leave is ex parte by nature. As it is my entitlement as the court that is now seized of the matter to consider the applicable law and reach the above observation, I will not, in the circumstances, consider, in determining the application, the material filed in response thereto. I say so because from a casual perusal of the response by the Interested Parties, the same seems to address the issue whether or not there are grounds to grant the substantive judicial review order of mandamus. Going into the deep of the responses will therefore amount to considering an application that is yet to be filed. 8. All said, I have considered the application, the verifying affidavit, the accompanying statement and I am satisfied that the application is not frivolous, vexatious or hopeless as it presents an arguable or prima facie case for consideration through a substantive application for judicial review. 9. Being of that persuasion, I hereby grant leave to the ex parte Applicants to commence the judicial review proceedings. I direct that the substantive application for mandamus be filed and served within 21 days from the date hereof. 10. This matter will be mentioned on 5th February, 2026 for further directions. 11. Orders accordingly. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 30TH DAY OF OCTOBER, 2025. JOE M. OMIDO JUDGE For Ex Parte Applicants: Ms. Okaka For Mr. Yogo. For Respondent: No Appearance. For The Interested Parties: Mr. Indimuli. Court Assistants: Mr. Ngoge & Mr. Juma. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16711/eng@2025-10-30 3
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