[2016] KEHC 3537 (KLR)
The court found that the applicant had established a clear legal right to payment of the decretal sum as decreed in CMCC 13256/2004, and that the Principal Secretary, Ministry of Defence, as the accounting officer, was under a statutory duty to satisfy the judgment. The Attorney General, being sued only as the...
Source-derived case information.
- Citation
- [2016] KEHC 3537 (KLR)
- Parties
- Applicant: Brookside Dairy Limited; Respondent: Principal Secretary, Ministry of Defence; Respondent: Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application 327 of 2015
- Procedural Posture
- Judicial Review Miscellaneous Application / Judgment
- Outcome
- application allowed in part
- Judges
- RE Aburili
- Legal Topics
- Judicial Review, Mandamus Orders, Government Liability, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brookside Dairy Limited
Applicant
Principal Secretary, Ministry of Defence
Respondent
Hon. Attorney General
Respondent
Procedural Posture
Judicial Review Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the applicant is entitled to an order of mandamus compelling payment of a decretal sum by the Principal Secretary, Ministry of Defence.
- 2 Whether the Attorney General can be compelled to pay the decretal sum as a party to the proceedings.
- 3 Whether the applicant has satisfied the requirements for grant of judicial review orders of mandamus.
Ratio Decidendi
The court found that the applicant had established a clear legal right to payment of the decretal sum as decreed in CMCC 13256/2004, and that the Principal Secretary, Ministry of Defence, as the accounting officer, was under a statutory duty to satisfy the judgment. The Attorney General, being sued only as the government's legal advisor, was not the party liable to pay the debt. The court held that the requirements for the grant of an order of mandamus had been met, as the applicant had obtained judgment, the decree remained unsatisfied, and the responsible public officer had failed to act. Accordingly, the court granted an order of mandamus compelling the Principal Secretary, Ministry of...
Court Disposition
application allowed in part
Orders
- Judicial Review Order of Mandamus issued compelling the Principal Secretary, Ministry of Defence to pay the applicant KES 2,173,831 as decreed in CMCC 13256/2004, together with interest at 12% per annum from 21st September 2012 until payment in full.
- Payment to be effected within 60 days from the date of judgment.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
JUDICIAL REVIEW MISC. APPLICATION NO. 327 OF 2015
BROOKSIDE DAIRY LIMITED ……........……PLAINTIFF/EXPARTE APPLICANT
VERSUS
1. THE PRINCIPAL SECRETARY,MINISTRY OF DEFENCE…..1ST RESPONDENT
2. HON. ATTORNEY GENERAL…..............................…….2ND RESPONDENT/DEFENDANT
JUDGMENT
1. Before me for determination is the Judicial Review Notice of Motion dated 30th October 2015. The Exparte applicant Brookside Dairy Limited seeks from this court Judicial Review orders of Mandamus to issue compelling the Principal Secretary Ministry of Defence and the Attorney General to pay the exparte applicant the sum of shs 2,173,831 plus interest at 12% per annum from 21st September 2012 when judgment was issued in CMCC13256/2004 Nairobi until payment in full.
2. The exparte applicant also seeks for orders that compliance be effected within 14 days and in default, notice to show cause to issue to both respondents. Costs are also prayed for.
3. In support of the Notice of Motion are grounds, statement of facts, verifying affidavits, supporting affidavit, application for leave dated 14th August 2015 and annextures which include decree, judgment in the suit in the court below, certificate of order and exhibits to prove that the amount due was indeed owing as claimed and decreed by the trial court.
4. I have noted that the application was served upon the respondents who have not entered any appearance. I have considered the Judicial Review Notice of Motion, the grounds, supporting affidavit, annextures and submissions by Mr Njuguna counsel for the Exparte applicant. I am satisfied that the application as presented is merited and ought to be granted.
5. However, I note that the Honourable Attorney General was sued as the Principal Legal Advisor to the Government. As an office, it does not owe any monies to the Exparte applicant. The decree and judgment in the lower court is clear that it is the Principal Secretary, Ministry of Defence that was supplied with milk and defaulted to pay. Accordingly, I grant Judicial Review Order of Mandamus directed at the Principal Secretary, Ministry of Defence compelling him to pay to the Exparte applicant the sum of shs 2,173,831 as decreed in CMCC 1325/2004 Nairobi, together with interest accruing thereon at the rate of 12% per annum from date of judgment until payment in full.
6. In default of such payment within 60 days from the date hereof. The Exparte applicant is at liberty to apply as appropriate.
Orders accordingly.
Dated, signed, delivered at Nairobi this 25th day of July 2016.
R.E. ABURILI
JUDGE