[2023] KEHC 24870 (KLR)

Mogutu v Principal Secretary, the Department of Defence & another (Judicial Review 5 of 2023) [2023] KEHC 24870 (KLR) (1 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24870 (KLR)

Republic of Kenya

In the High Court at Nakuru

Judicial Review 5 of 2023

HM Nyaga, J

November 1, 2023

Between

Salome Mokaya Mogutu

Applicant

and

Principal Secretary, The Department Of Defence & Another

Respondent

Judgment

1. Before Court is the Notice of motion dated 8th May,2023 brought by the ex-parte Applicant, Salome Mokaya Mogutu under Sections 8 and 9 of the Law of Reform Act ,Article47 of the Constitution of Kenya 2010 and Order 53 Rules 3(1) and (3) of the Civil Procedure Rules 2010 seeking the following Orders: -I.That an Order of Mandamus do issue to compel the 1st Respondent to pay the ex-parte Applicant the cumulative sum of Ksh.4, 842,825/= being the decretal amount owed to her arising from the judgement and decree obtained in the Nakuru CMCC NO.1429 of 2010 together with interest accruing thereon at the rate of 14% per annum as at from the time of the decree until payment in full.

II.That the 1st Respondent shall comply by satisfying the said Decree and interests on the amount cited hereinabove within 14 days from the date of service of the order.

III.That in default ,Notice to Show cause do issue against the persons occupying the office of the 1st respondent for him or her to show cause why he/she should not be cited for contempt of court and committal to civil jail.

IV.That costs of this application be provided for.

2. The application is supported by the grounds on its face and supported by an affidavit of the Applicant sworn on 9th May, 2023.

3. In a nutshell, it is the Applicant’s case That she had sued the respondent on behalf of the Department of Defence based at Lanet in Nakuru CMCC No. 1429 of 2010, seeking for general and special damages as a result of a road accident caused by the Respondent, its agents, servants and/or employees.

4. That after full hearing of the suit, the court entered judgement in her favour on 6th March,2019 for both general and special damages totalling to Ksh. 2,836,461/= plus costs and interests.

5. She deposes That as per the provisions of the Government Proceedings Act, it is the statutory duty of the named respondent to pay the judgement debt herein. However, as a direct consequence of the Respondent’s continued disregard and violation of the said judgement and final orders, the same has escalated on interest to a total tune of Ksh. Four Million Eight Hundred and Forty Two Thousand Eight Hundred and Twenty Five only (Ksh.4, 842,825/=) as at 20th January, 2023.

6. She avers That the 1st Respondent’s representative was present during the delivery of the said judgement but nonetheless she served the 1st Respondent with a copy of the judgement and decree on 20th February,2020 ,and subsequently with Certificate of Order against the government but the 1st respondent has never paid her compensation to date.

7. She asserts That unless this court intervenes and compels the 1st Respondent to obey the said court order by settling the total judgement debt, the respondent will continue with the disobedience of the said orders and thus corrode and erode the dignity of the court and confidence of the Applicant and the general public in the efficiency of the judicial process of resolving disputes in this country.

8. The respondents were duly served with the Application as evidenced by the Affidavits of service on record both dated 26th May, 2023 but they chose not to respond.

Analysis & Determination 9. The only issue That arises for determination is whether the ex parte Applicant is entitled to the reliefs sought.

10. The Court of Appeal in Republic vs Kenya National Examinations Council ex parte Gathenji and 9 Others, [1997] eKLR on the nature of the remedy of mandamus held as follows:“The next issue we must deal with is this: What is the scope and efficacy of an Order Of Mandamus? Once again we turn to Halsbury’s Law Of England, 4thEdition Volume 1 at page 111 from paragraph 89. That learned treatise says: -“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end That justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing That right; and it may issue in cases where, although there is an alternative legal remedy, yet That mode of redress is less convenient, beneficial and effectual.”At paragraph 90 headed “the mandate” it is stated:“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”What do these principles mean? They mean That an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where That person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed….”

11. The requirements for an order of mandamus to issue were explained by Mativo J. in Republic vs Principal Secretary, Ministry of Internal Security & another ex parte Schon Noorani & Another (supra) as follows:“Mandamus is an equitable remedy That serves to compel a public authority to perform its public legal duty and it is a remedy That controls procedural delays. The test for mandamus is set out in Apotex Inc. vs. Canada (Attorney General), [23] and, was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration).[24] The eight factors That must be present for the writ to issue are:-(i)There must be a public legal duty to act;(ii)The duty must be owed to the Applicants;(iii)There must be a clear right to the performance of That duty, meaning That:a.The Applicants have satisfied all conditions precedent; andb.There must have been:i.A prior demand for performance;ii.A reasonable time to comply with the demand, unless there was outright refusal; andiii.An express refusal, or an implied refusal through unreasonable delay;iv.No other adequate remedy is available to the Applicants;v.The Order sought must be of some practical value or effect;vi.There is no equitable bar to the relief sought;vii.On a balance of convenience, mandamus should lie.”

12. Section 21 of the Government Proceedings Act in this regard provides as follows as regards the requirements to be met in the enforcement of orders as against Government organs in civil proceedings:“(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in That behalf made by or on behalf of That person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to That person a certificate in the prescribed form containing particulars of the order:Provided That, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.(2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General(3)If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:Provided That the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct That, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.(4)Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.”

13. Execution proceedings against the Government or Public Authority under the Government Proceedings Act can only be as against the accounting officer or chief officer of the said Government or authority, who is under a statutory duty to satisfy a judgment made by the Court against That body. An order of mandamus is normally issued when an officer or an authority by compulsion of law or statute is required to perform a duty, and That duty, despite demand in writing, has not been performed

14. This was also the holding in Republic vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) where Githua J. held as follows:“In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides That payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon Attorney General, Section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon.”

15. In the instant case the judgement was entered in favour of the ex-parte applicant in Nakuru Civil Suit No.1429 of 2010: Salome Mokaya Mogutu vs Hon. Attorney General & Adan Kipngetich Mutai on 6th March,2019 as follows: - General Damages Ksh. 2,500,000/=

Special Damages Ksh.13850/=Total – Ksh. 2,513,850/=

Costs and interest

16. As per the Certificate of order to Government dated 23rd April, 2021, the 1st Respondent was ordered to pay a total sum of Ksh. 3,104,375/= being the decretal sum of Ksh.2, 836,461/= and costs in the sum of Ksh, 267,914 by 17th February, 2020 and in default the Respondents to pay further interest at Court rates from the date of the Decree until payment in full.

17. Once the certificate of order against the Government is served on the Hon. Attorney General, the consequences of section 21(3) of the Government Proceedings Act kick in and a statutory duty is thereby imposed on the relevant accounting officer to pay the sums specified in the said order to the person entitled to or to his advocate together with any interest lawfully accruing thereon. The said certificate was duly served.

18. Therefore as was appreciated in Republic vs Kenya National Examinations Council ex parte Gathenji and 9 others, [1997] eKLR there is a specific legal right but no specific legal remedy available for enforcing That right as execution cannot issue against the Government in the ordinary way. In such circumstances it is clear That an order of mandamus may go forth in order to remedy the defects of justice.

19. The Applicant should not be forever locked from realising the fruits of her judgement. I find merit in the instant application.

20. Consequently, I hereby issue the following orders;i.An order of mandamus to compel the 1st Respondents to pay the exparte Applicant the sum of Kshs 4,842,825/= being the judgement debt plus the accrued interest on the decretal sum at 14% per annum.ii.The 1st respondent to settle the said decree and interest on the above amount from 60 days hereof.iii.In default, the applicant is at liberty to apply for a notice against the officer of the 1st respondent to show cause why he or she should not be cited for contempt of court and committed to civil jail.iv.Costs of this Application to be borne by the 1st Respondent.

21. Orders Accordingly.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 1ST DAY OF NOVEMBER, 2023. H. M. NYAGAJUDGE