[2022] KEHC 11055 (KLR)
The court held that the Government's obligation to satisfy a decree only arises upon service of the certificate of order against the Government on the relevant Accounting Officer, as stipulated by section 17 of the Government Proceedings Act. In the absence of evidence that such service was effected, the statutory...
Source-derived case information.
- Citation
- [2022] KEHC 11055 (KLR)
- Parties
- Applicant: Vincent Alukhula Malika; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 5 of 2016
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application dismissed
- Judges
- WM Musyoka
- Legal Topics
- Mandamus Proceedings, Government Liability, Enforcement of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Alukhula Malika
Applicant
Attorney General
Respondent
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the Government is obligated to settle a court decree before service of the certificate of order against the Government on the relevant Accounting Officer.
- 2 Whether an order of mandamus can issue where there is no evidence of service of the certificate of order against the Government.
Ratio Decidendi
The court held that the Government's obligation to satisfy a decree only arises upon service of the certificate of order against the Government on the relevant Accounting Officer, as stipulated by section 17 of the Government Proceedings Act. In the absence of evidence that such service was effected, the statutory duty to pay had not arisen. Consequently, the application for an order of mandamus was premature and incompetent, as the necessary precondition—service of the certificate—had not been fulfilled. The court therefore dismissed the motion for mandamus.
Court Disposition
application dismissed
Orders
- The Motion dated 30th June 2021 is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
Malika v Attorney General (Judicial Review 5 of 2016) [2022] KEHC 11055 (KLR) (22 July 2022) (Judgment)
Neutral citation: [2022] KEHC 11055 (KLR)
Republic of Kenya
In the High Court at Kakamega
Judicial Review 5 of 2016
WM Musyoka, J
July 22, 2022
Between
Vincent Alukhula Malika
Applicant
and
Attorney General
Respondent
Judgment
1. This matter was initially being handled by F. Amin J, and I only took it over on 16th June 202, following retirement of F. Amin J. That is how I get to be preparing and delivering this judgment.
2. Leave was granted herein on 17th June 2021 to being “Mandamus Proceedings” against the Ministry of Water and Sanitation. Through its Chief Accounting Officer with respect to a decree made in Kakamega CMCCC No. 290 of 2012.
3. The substantive Motion, dated 30th June 2021, has filed herein on 2nd July 2021. Attached to that Motion is the judgment delivered in Kakamega CMCCC No. 290 of 2012 against the Attorney General on 15th July 2015; copy of the decree and certificate of stated costs in Kakamega CMCCC No. 290 of 2012, dated 13th August 2016; copy of a certificate of order against government, issued in Kakamega CMCCC No. 290 of 2012 dated 13th August 2016; and copies of correspondence between the Advocate for the ex-parte applicant, the Ministry of Water and Sanitation and the Attorney General.
4. The duty on the part of Government to settle decrees made by courts of law arises only after the certificate of order against the Government has been served upon the relevant government department. Government only pays against the said certificate, which is a critical accounting document for that purpose, according to section 17 of the Government Proceedings Act, Cap 40 Laws of Kenya.
5. There is evidence that the ex-parte applicant did obtain the certificate of order against Government, but there is nothing to show whether the said certificate was ever served on the Accounting Officer of the relevant Ministry for satisfaction. It is not enough to obtain the certificate, the same is intended to be served on the officer responsible for action. The duty to pay only arises upon the said service.
6. Consequently, as there is no evidence that the certificate of order against Government was ever served on the relevant officer, the duty on the part of the Government to satisfy the decree has not arisen, and it is premature to issue a Mandamus order in the circumstances. The Motion dated 30th June 2021, is accordingly incompetent, and I hereby dismiss the same. There shall be no order on costs
JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 22nD DAY OF JULY 2022. W.M. MUSYOKAJUDGEMr. Erick Zalo, Court Assistant