[2017] KEHC 6109 (KLR)
The court found that there was no dispute as to the existence of a valid decree in CMCC 1945/2013, which the respondents had acknowledged but failed to pay. Since execution cannot issue against the County Government under the Government Proceedings Act, the only available remedy for the applicant was an order of...
Source-derived case information.
- Citation
- [2017] KEHC 6109 (KLR)
- Parties
- Applicant: George Kamande Ndungu; Respondent: County Secretary Nairobi City County; Respondent: Chief Officer, Finance/County Treasurer Nairobi City County
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 357 of 2016
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- Application for judicial review order of mandamus granted.
- Judges
- RE Aburili
- Legal Topics
- Judicial Review Orders, Mandamus Against Public Officers, Government Proceedings Act, Enforcement of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Kamande Ndungu
Applicant
County Secretary Nairobi City County
Respondent
Chief Officer, Finance/County Treasurer Nairobi City County
Respondent
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether an order of mandamus should issue to compel the respondents to pay the decretal sum in CMCC 1945/2013 together with interest as decreed.
- 2 Whether the respondents are liable to contempt proceedings in the event of non-compliance with the mandamus order.
Ratio Decidendi
The court found that there was no dispute as to the existence of a valid decree in CMCC 1945/2013, which the respondents had acknowledged but failed to pay. Since execution cannot issue against the County Government under the Government Proceedings Act, the only available remedy for the applicant was an order of mandamus to compel payment. The court granted the order of mandamus as prayed, compelling the respondents to settle the decretal sum and interest as decreed within 60 days. The court further held that, in default, contempt proceedings could be initiated against the respondents. The prayer for notice to show cause was declined as it would only arise upon disobedience of the...
Court Disposition
Application for judicial review order of mandamus granted.
Orders
- Judicial review order of mandamus issued compelling the respondents to settle the decretal sum in CMCC 1945/2013 together with interest as decreed within 60 days.
- In default of payment, contempt proceedings may be initiated against the respondents.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
JUDICIAL REVIEW
MISC. APPLICATION NO. 357 OF 2016
IN THE MATTER OF AN APPLICATION BY GEORGE KAMANDE NDUNGU FOR LEAVE TO APPLY FOR AN ORDER OF MANDAMUS
IN THE MATTER OF THE CHIEF MAGISTRATE’S COURT CIVIL SUIT NO. 1945 OF 2013
AND
IN THE MATTER OF SECTION 59 OF THE URBAN AREAS AND CITIES ACT NO. 13 OF 2011 AND SECTION 44(1) AND 45(4) OF THE COUNTY GOVERNMENT ACT NO. 17 OF 2012 AND ALL OTHER ENABLING PROVISIONS OF THE LAW
BETWEEN
GEORGE KAMANDE NDUNGU……………………………......................................……...APPLICANT
VERSUS
THE COUNTY SECRETARY NAIROBI CITY COUNTY...........................................1ST RESPONDENT
CHIEF OFFICER, FINANCE/COUNTY TREASURER NAIROBI CITY COUNTY…2ND RESPONDENT
JUDGMENT
1. The application dated 21st October 2016 seeks for Judicial Review orders of mandamus against the respondent County Secretary and Chief Officer Finance, & County Treasurer, Nairobi City County to compel payment of shs 1,040695. 10 being decretal sum in CMCC 1945/2013 together with interest at 12% per annum and further interest at 14% per annum from 1st August 2016 until payment in full and that in default, notice to show cause to issue against the respondents why they should not be cited for contempt. Costs are also sought.
2. The application which is unopposed is supported by the statutory statement in support of leave and verifying affidavit of the applicant George Kamande Ndungu sworn on 8th August 2016.
3. I have considered the application. It is not in dispute that there is decree in CMCC 1945/2013 which the respondents did acknowledge but which they have defaulted to settle. The only way to compel them to settle is by way of mandamus as the City County Government falls within the provisions of the Government Proceedings Act Cap 40 Laws of Kenya and execution cannot issue against them.
4. Accordingly, I grant Judicial Review order of mandamus prayed for in prayer No. 1 of the notice of motion compelling the respondents to settle the decretal sum in CMCC 1945/2013 together with interest as decreed and as per prayer No. 2 of the application within the next 60 days from todate. In default, contempt proceedings to be initiated as appropriate. Costs to the applicant. I decline to grant prayer No. 4 of the motion as it is a consequence of disobedience of the order of mandamus.
Dated, signed and delivered in open court at Nairobi this 1st day of March 2017.
R.E. ABURILI
JUDGE