Charpenel Enterprises Limited v County Government of Kwale

e. An Order of Certiorari do issue quashing and/or deleting Section 23 Item 28 and 29 [transport of Silica Sand (white Sand)] under the Department of Environment, Natural Resources and Urban Planning Quarrying of the Respondent's Finance Act 2025 for violation of Article 10(2), 118, and 196 of the Constitution of Kenya, and in violation of Sections 87 to 92 of the County Government Act. f. The costs of this application be provided for. 2. The application is expressed to be filed under Order 53 Rules 1 (1), (2) and (4) of the Civil Procedure Rules, the Law Reform Act (Cap 26) Laws of Kenya and all other enabling provisions of law. 3. The application is based on grounds set out on the face thereof and expounded in the supporting affidavit of Peter Karuga Kariuki sworn on 30th January 2026. 4. Order 53 Rule 1 of the Civil Procedure Rules under which the application is filed provides as follows: 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. 5. I have gone through the application filed by the ex-parte applicant and I fail to find a statutory statement of facts and verifying affidavit that are required to accompany the ex-parte Chamber Summons under Order 53 Rule 1(2) above. The Rule is explicit that the leave can only be granted in accordance with the provisions of the rule. It follows that where there is non-compliance with the rules, the leave sought cannot be granted. 6. In Uwe Meixner & another v Attorney General [2005] KECA 292 (KLR) the Court of Appeal that: “The leave of the court is a prerequisite to making a substantive application for judicial review. The purpose of the leave is to filter out frivolous applications. The granting of leave or otherwise involves an exercise of judicial discretion.” 7. The discretion will be exercised by the court only when a proper application is paced before it. Otherwise, there will be no basis upon which the discretion will be exercised. 8. The High Court, Musyoka, J. had occasion to extensively explore the procedure for initiating JR proceedings in the case of Republic v Chief Magistrate, Busia; Haroon Yuasa Limited (Ex parte); Amukoya (Interested Party) [2023] KEHC 23437 (KLR). The learned Judge’s conclusion was that commencement of JR proceedings under Order 53 Rule 1 without a statutory statement makes the application incompetent. The learned Judged stated thus: “ The application has other serious deficiencies. The first relates to something that I have alluded to, in paragraph 2, hereabove, the omission to file the statutory statement, envisaged https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19696/eng@2025-01-03 2

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in Order 53 rule 1(2) of the Civil Procedure Rules. The said statement is the principal pleading in Judicial Review proceedings. It is akin to a plaint or a petition in an ordinary suit. It originates the Judicial Review cause. It is filed simultaneously with the ex parte chamber summons, at the leave stage, according to Order 53 rule 1(2), and it provides the backbone to the substantive Motion, according to Order 53 rule 4(1). The ex parte chamber summons and the Motion are interlocutory applications or filings that ride on the back of the said statement. One may say that they are mere appendages to that statement. There can be no valid ex parte chamber summons or substantive Motion without the statement. Under Order 53 rule 1(2), the statement must be verified by an affidavit, and that statement and that affidavit must be served together with the substantive Motion, according to Order 53 rule 4(1). Indeed, under Order 53 rule 3(1), no other documents ought to be filed with the Motion, for the same is meant to ride on the statement and the verifying affidavit, filed under Order 53 rule 1(2). The proceedings herein lack that backbone, which provides the basis or foundation for the filing of the verifying affidavit and the Motion. Without the statement, the 2 filings or processes hang in the air. They have no base. These proceedings are, accordingly, half-baked. I agree with the interested party; the proceedings are incompetent.” 9. What the High Court stated above is exactly what obtains in the present application. The leave stage for applying JR proceedings is important because it acts as a sieve for matters that have no merit not to proceed further considering that JR orders are intended to address the legitimate requirement of public authorities that they should be free to perform their proper functions on behalf of the public and the corresponding requirement that they should have due regard for the legitimate rights and interests of the individual and groups of individuals. 10. It is imperative that the special procedure set out for initiation of JR proceedings is adhered to in order that the ensuing orders have legitimacy. 11. The application filed herein falls short of complying with the requirements set out under Order 53 Rule 1 CPR. Consequently, I find the Chamber Summons application incompetent and the same is struck out with no orders for costs. 12. Orders accordingly. RULING DELIVERED, DATED AND SIGNED ON THE VIRTUAL PLATFORM TEAMS THIS 3RD DAY OF JANUARY 2025. THIS RULING IS UPLOADED ON THE CTS FOR ACCESS BY THE PARTIES. SIGNED BY/FOR: HON. JUSTICE ANDAYI W.F. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19696/eng@2025-01-03 3

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