[2017] KEELC 591 (KLR)
The court found that the applicant had obtained a judgment and taxed costs against the respondents, which remained unsatisfied. Given that execution against government entities is not available through ordinary means, the applicant's only recourse is to seek an order of mandamus. The court applied the test for...
Source-derived case information.
- Citation
- [2017] KEELC 591 (KLR)
- Parties
- Applicant: Equilab Technologies Limited; Respondent: The County Secretary, Nairobi City County; Respondent: Chief Officer Finance/County Treasurer, Nairobi City County; Respondent: Nairobi City County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 45 of 2017
- Procedural Posture
- Judicial Review Application / Ruling on Leave to Commence Judicial Review Proceedings
- Outcome
- Leave granted to commence judicial review proceedings for mandamus.
- Judges
- BM Eboso
- Legal Topics
- Mandamus Against Government, Enforcement of Decrees, Judicial Discretion on Leave, Execution Against Public Bodies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Equilab Technologies Limited
Applicant
The County Secretary, Nairobi City County
Respondent
Chief Officer Finance/County Treasurer, Nairobi City County
Respondent
Nairobi City County
Respondent
Procedural Posture
Judicial Review Application / Ruling on Leave to Commence Judicial Review Proceedings
Legal Issues
- 1 Whether the applicant has established an arguable case to warrant leave to commence judicial review proceedings for an order of mandamus.
- 2 Whether leave should be granted to seek mandamus to compel payment of a decretal sum and taxed costs against a county government.
Ratio Decidendi
The court found that the applicant had obtained a judgment and taxed costs against the respondents, which remained unsatisfied. Given that execution against government entities is not available through ordinary means, the applicant's only recourse is to seek an order of mandamus. The court applied the test for granting leave in judicial review, determining that the application was neither frivolous nor vexatious and disclosed an arguable case. Consequently, the court exercised its discretion to grant leave to the applicant to commence substantive judicial review proceedings for mandamus.
Court Disposition
Leave granted to commence judicial review proceedings for mandamus.
Orders
- Leave is granted in terms of prayer 1 of the chamber summons dated 14/11/2017.
- The substantive motion shall be filed and served within 21 days.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC JR. APPLN. NO. 45 OF 2017
EQUILAB TECHNOLOGIES LIMITED …......................... APPLICANT
VERSUS
THE COUNTY SECRETARY,
NAIROBI CITY COUNTY ……………………….……... 1ST RESPONDENT
CHIEF OFFICER FINANCE/COUNTY TREASURER,
NAIROBI CITY COUNTY ………...……..……..………. 2ND RESPONDENT
NAIROBI CITY COUNTY ………...…...……….………. 3RD RESPONDENT
RULING
1. I have considered the chamber summons application dated 14/11/2017 through which the applicant seeks leave of this court to commence proceedings for an order of mandamus directed at the respondents commanding them to pay the applicant the decretal sum and costs awarded in ELC 252/2015. I have examined the annextures to the verifying affidavit.
2. Grant or refusal of leave is an exercise of judicial discretion. The test to be applied is whether the applicant has made out an arguable case [see: UWE MEIXNER & ANOR V ATTORNEY GENERAL, (2005) eKLR]. Secondly, the purpose of the application for leave is to eliminate applications which are frivolous, vexatious or hopeless and to ensure that only those applications disclosing arguable cases proceed for further consideration.
3. The applicant herein obtained judgment on 26/2/2016. The decree was issued on 16/5/2016. Its bill of costs was taxed in August 2017. It contends that both the decree and the certificate of costs have not been satisfied. It is trite law that normal execution proceedings through attachment and sale of assets would not issue against the government. The one efficacious instrument of execution available to a decree holder such as the applicant herein is the writ of mandamus.
4. Consequently, I am satisfied that the applicant’s intended motion is not frivolous, vexatious or hopeless. The applicant has made out an arguable case. I accordingly grant leave in terms of prayer 1 of the chamber summons. The substantive motion shall be filed and served within 21 days. Mention on 25/01/2018 for further directions.
Dated, signed and delivered at Nairobi on this 15th day of November, 2017.
B M EBOSO
JUDGE