[2018] KEHC 7692 (KLR)
The court found that the applicant had obtained a taxed costs order against the respondent, which remained unsatisfied. Since execution cannot issue against the respondent due to statutory protection under the IEBC Act and Government Proceedings Act, and as there was no evidence of challenge to the taxed costs or...
Source-derived case information.
- Citation
- [2018] KEHC 7692 (KLR)
- Parties
- Applicant: Bishop Donald Kisaka Mwanasi; Respondent: Independent Electoral and Boundaries Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 691 of 2017
- Procedural Posture
- Judicial Review Application / Judgment
- Outcome
- Application for mandamus granted.
- Legal Topics
- Judicial Review, Mandamus, Enforcement of Costs, Public Body Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bishop Donald Kisaka Mwanasi
Applicant
Independent Electoral and Boundaries Commission
Respondent
Procedural Posture
Judicial Review Application / Judgment
Legal Issues
- 1 Whether the applicant is entitled to an order of mandamus to compel the respondent to pay taxed costs as ordered by the court.
- 2 Whether there exists any alternative remedy for the applicant to recover the taxed costs from the respondent.
- 3 Whether the respondent is under a statutory duty to settle the taxed costs awarded to the applicant.
Ratio Decidendi
The court found that the applicant had obtained a taxed costs order against the respondent, which remained unsatisfied. Since execution cannot issue against the respondent due to statutory protection under the IEBC Act and Government Proceedings Act, and as there was no evidence of challenge to the taxed costs or any alternative remedy available, the court held that the respondent was under a statutory duty to settle the costs. The court was satisfied that the requirements for mandamus were met and issued an order compelling the respondent to pay the taxed costs within 60 days, failing which contempt proceedings could be initiated.
Court Disposition
Application for mandamus granted.
Orders
- An order of mandamus is issued compelling the respondent to settle the taxed costs of KES 335,280 within 60 days from the date of judgment.
- In default of payment, a notice to show cause why contempt proceedings should not be commenced shall issue as per Section 30 of the Contempt of Court Act.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
JUDICIAL REVIEW NO. 691 OF 2017
IN THE MATTER OF: AN APPLICATION TO SEEK LEAVE TO COMMENCE JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF MANDAMUS AGAINST THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION
AND
IN THE MATTER OF SECTION 8 AND 9 OF THE LAW REFORM ACT CAP 26 OF THE LAWS OF KENYA
AND
IN THE MATTER OF THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ACT NO. 9 OF 2011
AND
IN THE MATTER OF THE HIGH COURT CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO. 12 OF 2013
BETWEEN
BISHOP DONALD KISAKA MWANASI........................APPLICANT
-VERSUS-
THE INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION....................................RESPONDENT
JUDGMENT
1. By a notice of motion dated 8th February 2018, the exparte applicant Bishop Donald Kisaka Mawasi seeks from this court mandamus to compel the respondent Independent Electoral and Boundaries Commission to remit a total of kshs 335,280 as per the ruling and reasons for taxation dated 20th July 2017 in Petition No. 12/2013 and costs of the application .
2. The application is supported by the verifying affidavit of Dr John Khaminwa sworn on 14th December 2017 and statutory statement dated 14th December 2017 accompanying the chamber summons for leave.
3. According to the applicant, vide a judgment in Civil Appeal (Court of Appeal) No 280/2013 arising from High Court Petition No. 12/2013, the respondent was ordered to pay to the applicant herein who was the appellant, costs of the appeal and of the petition .
4. On 20th July 2017 bill of costs was taxed at an all inclusive figure of kshs 335,280 against the respondent but that todate, the respondent has refused failed and or neglected to settle hence these proceedings.
5. Further, that Section 13(2) of the Independent Electoral and Boundaries Commission Act bars execution against the Commission, placing it under Cap 40( Government Proceedings Act hence the applicant has no other means of enforcing the recovery of the taxed costs due to him.
6. The application was not opposed by the respondent whose counsel Mr Karani urged the court to grant mandamus but without costs as the Commission was seeking for funds to settle the taxed costs.
7. Miss Gathua advocate urged the application on behalf of her client reiterating the statutory statement and the verifying affidavit.
8. Having considered the motion for mandamus as argued and as presented, in the absence of any evidence of challenge to the taxed costs and as there is no other alternative remedy for the applicant to resort to, to recover his taxed costs, I am satisfied that the Independent Electoral and Boundaries Commission is under statutory duty to settle the applicant’s costs as taxed, being an obligation to obey a court order which remains unchallenged.
9. Accordingly, I find the motion for mandamus merited. I issue mandamus compelling the respondent Independent Electoral and Boundaries Commission to settle the taxed costs in the sum of kshs 335,280 within the next 60 days from the date of this judgment and in default, the notice to show cause why contempt of court order proceedings should not be commenced shall issue as per Section 30 of the Contempt of Court Act and the said NTSC shall be set down for hearing thirty days after service of the notice to show cause on the respondent’s Chief Executive Officer/Accounting Officer for the time being, in office, in accordance with Section 21 of the Government Proceedings Act.
10. To avoid escalation of more costs and as the respondents is a public entity which draws its funds from the public coffers, and to avoid over burdening the tax payer, I hereby order that each party shall bear their own costs of these proceedings.
11. Orders accordingly.
Dated, signed and delivered in open court at Nairobi this 27th day of March, 2018.
R.E.ABURILI
JUDGE
In the presence of:
Mr Karani for the respondent
Mr Mc Ronald h/b for Dr Khaminwa for the applicant
CA: Kombo