Pharmaceuticals Limited & 2 others v Homabay & 1 other

2. The application is accompanied by a Statutory Statement and verified by an affidavit sworn on 23rd April 2024 by Robert Kamau Willie Ngigi. The Applicant provides the background to the cause of action giving rise to the Judgement and decree of the High Court as stated above. 3. The Applicant is the decree holder in Nairobi Chiefs Magistrates Court, Milimani Commercial Courts Civil Case Number 6641 of 2018 (Veteran Pharmaceutical Limited v Homabay District Hospital & Another) 4. The Applicant has on several occasions requested for payment of decretal sum and the accrued interest thereon but the Respondents have failed and/or refused to pay. 5. The Applicant avers that the refusal of the Respondents to Pay the claim is unfair, irrational and an obstruction of justice and the Applicant is therefore amenable to the Judicial Review order in the nature of Mandamus. 6. The matter was canvassed by way of written submissions Applicant has presented submissions to the chamber summons. 7. I have considered the pleadings by the Applicants and the main issue for determination is whether the Applicant has made a case to warrant the reliefs sought. 8. The applicable law on leave to commence judicial review proceedings is Order 53 Rule 1 of 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. 9. The reason for the leave was explained by Waki J (as he then was), in Republic v County Council of Kwale & Another Exparte 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 JR. MISC. E092 OF 2024 2|Page

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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 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.” 10. At the leave stage, the court need not deeply analyze the parties' substantive arguments; it only needs to conduct a surface-level review of the evidence to determine if the case has enough merit to proceed. 11. 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. This was supported in the case of Republic vs. Land Disputes Tribunal Court Central Division and Another Exparte 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”. JR. MISC. E092 OF 2024 3|Page

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12. Based on the documents submitted, the Applicant received a decree guaranteeing him payments owed to him by the Respondents and therefore, seeks further enforcements hence instituting Judicial Review Proceedings. 13. As was in Mwatsama v Attorney General & another (Judicial Review Application 259 of 2019) [2025] KEHC 3634 (KLR) (Judicial Review) (24 March 2025) Judge R.E Aburili held: “The Applicant who is the decree holder has rights which have crystallized, to enjoy the fruits of his lawful judgment and those rights must not be curtailed. That right must be safeguarded and enforced by the court as espoused in Article 159(2) (a) and (b) of Constitution of Kenya. 14. 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 ex-parte 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 JR. MISC. E092 OF 2024 4|Page

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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.” 15. Based on the foregoing, it is clear that the only remedy available to such a decree holder is judicial review remedy of mandamus to compel the Respondents to settle the material decree. It is therefore my considered opinion that the Applicant’s application for grant of leave to commence judicial proceedings against the Respondents is merited. 16. Based on the above analysis, this court proceeds to grant the application as follows: a. The Applicant is hereby granted leave to apply for an order of mandamus directed against the Respondents to compel to release, pay and satisfy the decretal amount of Kshs. 16, 014, 994. 28 plus costs of Kshs. 318, 140 obtained in the Applicants favor in Nairobi Chiefs Magistrates Court, Milimani Commercial Courts Civil Case Number 6641 of 2018 (Veteran Pharmaceutical Limited v Homabay District Hospital & Another) together with the accrued interest thereon from 19th December 2023 at the rate of 18% per annum payment in full. b. The Substantive Motion to be filed within 14 days from the date of this Ruling. c. Costs of this Application to outcome of the main motion. abide in the Dated, Signed and Delivered Virtually on this 2nd day of July, 2026. HON. T. W. OUYA, OGW JR. MISC. E092 OF 2024 5|Page

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JUDGE In the presence of: Ms. Kiprop for Mr. Chepng’eno for Applicant Nyabuto – Court Assistant JR. MISC. E092 OF 2024 6|Page

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