[2006] KEHC 1605 (KLR)
The court held that since section 263A of the Local Government Act prohibits the attachment of local authority property, decree holders cannot enforce judgments against local authorities through ordinary execution proceedings. Therefore, the only available remedy is an order of mandamus compelling the local...
Source-derived case information.
- Citation
- [2006] KEHC 1605 (KLR)
- Parties
- Applicant: Grace Nyambura Kanyi; Applicant: Joseph Kiiru Kanyi; Respondent: Municipal Council of Mombasa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 162 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judicial Review Order of Mandamus
- Outcome
- application allowed
- Legal Topics
- Judicial Review, Mandamus Orders, Enforcement of Decrees, Local Authorities Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Nyambura Kanyi
Applicant
Joseph Kiiru Kanyi
Applicant
Municipal Council of Mombasa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judicial Review Order of Mandamus
Legal Issues
- 1 Whether an order of mandamus should issue to compel the Municipal Council of Mombasa to pay the decretal sum in HCCC No. 115 of 2003.
- 2 Whether the Local Government Act bars attachment of local authority property, leaving mandamus as the only remedy for decree holders.
Ratio Decidendi
The court held that since section 263A of the Local Government Act prohibits the attachment of local authority property, decree holders cannot enforce judgments against local authorities through ordinary execution proceedings. Therefore, the only available remedy is an order of mandamus compelling the local authority, through its officers, to satisfy the decree. The respondent did not file a substantive response to the application, and the grounds of opposition were found to be frivolous. Consequently, the court granted the order of mandamus as sought by the applicants, compelling the Town Clerk and/or Treasurer of the Municipal Council of Mombasa to settle the decree in HCCC No. 115 of...
Court Disposition
application allowed
Orders
- An order of mandamus is issued to compel the Town Clerk and/or Treasurer of the Municipal Council of Mombasa to settle the decree in HCCC No. 115 of 2003.
- Costs awarded to the applicants.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Misc Civ Appli 162 of 2006
IN THE MATTER OF: THE ESTATE OF THE LATE KANYI
KIIRU THUO
AND
IN THE MATTER OF: AN APPLICATION BY GRACE NYAMBURA
KANYI AND JOSEPH KIIRU KANYI FOR
JUDICIAL REVIEW ORDER OF MANDAMUS
AND
IN THE MATTER OF: THE LOCAL GOVERNMENT ACT CAP. 265
GRACE NYAMBURA KANYI
JOSEPH KIIRU KANYI……….....................................................……………………..APPLICANTS
VERSUS
MUNICIPAL COUNCIL OF MOMBASA……….................................................…..RESPONDENT
RULING
By their Notice of Motion dated and filed on the 27th February 2006 the Ex-parte Applicants seek under Order 53 Rules 1, 2, 3 and 4 of the Civil Procedure Rules an order of Mandamus to compel the Town Clerk, Treasurer and or the Municipal Council of Mombasa by itself its agents and or officers to pay to Applicants a total of Sh. 10,147,182/= being the decretal sum in HCCC No. 115 of 2003. Although the same was served upon the Respondent on 14th March 2006 no replying affidavit has been filed opposing it. The grounds of opposition filed by counsel for the Respondent yesterday when I had refused to adjourn the matter are frivolous. No wonder Miss Musembi did not bother to urge them.
As section 263A of the Local Government Act forbids the attachment of local authorities properties I agree with Mr. Kilonzo that an order of mandamus is the only avenue decree holders are left with in seeking the local authorities to settle decrees. In the circumstances I allow this application and order that an order of mandamus do issue to compel the Town Clerk and or the Treasurer of the Municipal Council of Mombasa to settle the decree in HCCC No. 115 of 2003. Costs to the Applicants.
DATED and delivered this 7th day of July 2006.
D. K. MARAGA
JUDGE