Benatech Limited & 1 other v The Hon. Attorney General & 2 others

b. A declaration that the refusal by the Respondents to settle the partial decree in (Milimani High Court Commercial Suit No. E218/2021 Benatech Limited & Anor v the Hon. Attorney General) is contrary to Article 10 of the constitution and a threat to the rule of law. 2. The Applicants further sought the leave so granted operates as stay of any further administrative actions or omissions by the Respondents that would delay or frustrate the payment of the decreed sums until the hearing and determination of the substantive Judicial Review Application. 3. The Application was supported by grounds on and a Statutory Statement of even date. 4. The Applicant contended that on 23rd February 2024, the High Court of Kenya at Nairobi Commercial Division entered aa partial judgment on admission in High Court Commercial Suit No. E218 of 2021 in a suit instituted by the Applicants against the Respondent. 5. Accordingly, the Applicants extracted a partial decree for purposes of execution. However, knowing that the Government cannot be subjected to standard asset attachment, the Applicant pursued the specialized procedure under the Government Proceedings Act. Subsequently, the Deputy Registrar issued two Certificates of Order Against the Government on 27th January 2026. 6. The Certificate issued to the 1st Applicant was for Ksh. 54,016,849.10 (inclusive of interest) while that of the 2nd Applicant was Kshs. 26,697,313.19 (inclusive of interest). 7. The Applicants decried the silence by the 1st Respondent despite being served with the demand and intention to institute judicial proceedings for purposes of recovery of the sums owed. 8. The Applicant therefore contended that no other remedy, other than instituting judicial review proceedings, was available to them against the Respondents. 9. No submissions have been filed in this case. Analysis and Determination 10. I have considered the pleadings by the Applicants and the main issue for determination is whether the Applicant has made a case to warrant rant of the reliefs sought. 11. The applicable law on leave to commence judicial review proceedings is Order 53 Rule 1of the Civil Procedure Rules, which provides that no Application for judicial review orders should be made unless leave of the court was sought and granted. 12. The reason for the leave was explained by Waki J (as he then was), in Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others, Mombasa HCMCA No. 384 of 1996 as follows: “ The purpose of 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 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 officers 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…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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8683/eng@2026-06-18 2

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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 the court’s discretion but as always it has to be exercised judicially.” 13. It is also trite that in an application for leave, the Court ought not to delve deeply into the arguments of the parties, but should make cursory perusal of the evidence before court and make the decision as to whether an Applicant’s case is sufficiently meritorious to justify leave. 14. Before grant of leave, it is crucial to establish that the case is arguable without delving into the merits of the arguments of the parties as held in the case of Republic v. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka [2006] 1 EA 321 where the court held: “ That leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case for granting leave”. 15. A perusal of the pleadings demonstrates that the Applicants obtained a Court decree that is to be enforced through institution of judicial review orders of mandamus. In Republic v Attorney General Exparte James Alfred Koroso JR 44/2012 Odunga J (as he then was in the High Court) added his voice to the question of how a decree against the Government can be settled through execution process and stated: “ …in the present case, the Exparte applicant has no other option of realizing the fruits of this judgment since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgment that he has been awarded is realized. Unless something is done he will forever be left babysitting his barren decree. This state of affairs cannot be allowed to prevail under out current constitutional dispensation in light of provisions of Article 48 of the constitution which enjoins the state to ensure access to justice for all persons. Access to justice cannot be said to have been ensured when persons in whose favour judgments have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgments due to road blocks placed on their paths by actions or inactions of public officers. Public offices, it must be remembered, are held in trust for the people of Kenya and public officers must carry out their duties for the benefit of the people of the Republic of Kenya. To deny a citizen his or her lawful rights which have been decreed by a court of competent jurisdiction is, in my view, unacceptable in a democratic society.” 16. From the above statutory and judicial pronouncements, which restate the law, it is clear that the only remedy available to such a decree holder as the ex-parte applicant herein against the Government is judicial review remedy of mandamus to compel the Accounting Officer of the relevant Ministry or State Department to settle the material decree. 17. It is expected that judgment debtors settle decrees once judgment is rendered. In this case, the law provides that where there is no payment made, only mandamus can issue to ensure that justice may eventually be served because there is no other remedy available to the decree holder/ applicant. 18. The upshot is that the Applicant’s application for grant of leave to commence judicial proceedings against the Respondents is merited. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8683/eng@2026-06-18 3

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19. As to whether leave should operate as stay I have taken into account the position taken in Taib A Taib v The Minister for Local Government & Others Mombasa HCMISCA No 158 of 2006 that: “ The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body such as a local authority or minister and the implementation of the decision of such a body if it has been taken.” 20. The Applicants have not demonstrated any decision that the Respondents have made or intend to make that would warrant an order of stay. Instead, the Applicants prayer for stay is broad, vague and ambiguous and does not fall within the ambit of conduct for which a stay order applies. I therefore decline to grant the order that the leave granted herein do operate as stay. 21. The upshot of the matter is that the Application dated 2nd March 2026 is disposed as follows: i. The Applicants are hereby granted leave to apply for: a. An Order of Mandamus directed at the 1st, 2nd, and 3rd Respondents, and specifically the Accounting Officer of the State Department for Public Service & Human Capital Development and the Director General of the National Youth Service, compelling them to unconditionally process, authorize, and effect payment of the sum of Kshs. 54,016,849.10 to the 1st Applicant, Benatech Limited, and the sum of Kshs. 26,697,313.19 to the 2nd Applicant, Treasure General Merchants Limited arising out of (Milimani High Court Commercial Suit No. E218/2021 Benatech Limited & Anor v the Hon. Attorney General) together with interest until payment in full. b. A declaration that the refusal by the Respondents to settle the partial decree in (Milimani High Court Commercial Suit No. E218/2021 Benatech Limited & Anor v the Hon. Attorney General) is contrary to Article 10 of the constitution and a threat to the rule of law. ii. The substantive motion to be filed within 14 days from the date of this Ruling iii. Costs of this Application to abide in the outcome of the main motion. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 18TH DAY OF JUNE, 2026. HON. T. W. OUYA, OGW JUDGE In the presence of: Nyakiti for Kamande for Applicants Nyabuto – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8683/eng@2026-06-18 4

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