[2013] KEHC 4228 (KLR)
The court found that the applicant had obtained a decree against the government in 1996, which remained unsatisfied for over sixteen years despite repeated requests for payment. The respondent did not oppose the application for mandamus. The court held that the applicant was entitled to an order of mandamus to...
Source-derived case information.
- Citation
- [2013] KEHC 4228 (KLR)
- Parties
- Applicant: Mohamed Baishe; Respondent: The Hon. Attorney General; Interested Party: Permanent Secretary (Office of the President) – Nairobi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 39 of 2012
- Procedural Posture
- Judicial Review / Ruling on Notice of Motion for Order of Mandamus
- Outcome
- Application allowed. Order of mandamus issued as prayed.
- Legal Topics
- Judicial Review, Mandamus, Government Liability, Enforcement of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Baishe
Applicant
The Hon. Attorney General
Respondent
Permanent Secretary (Office of the President) – Nairobi
Interested Party
Procedural Posture
Judicial Review / Ruling on Notice of Motion for Order of Mandamus
Legal Issues
- 1 Whether an order of mandamus should issue to compel payment of a decretal sum by the government to the applicant.
- 2 Whether the government has failed to satisfy a decree issued against it for over sixteen years.
Ratio Decidendi
The court found that the applicant had obtained a decree against the government in 1996, which remained unsatisfied for over sixteen years despite repeated requests for payment. The respondent did not oppose the application for mandamus. The court held that the applicant was entitled to an order of mandamus to compel the Permanent Secretary, Office of the President, to pay the decretal sum plus interest as per the decree and certificate of order against the government. The court was satisfied that all legal requirements for the issuance of mandamus had been met, and the prolonged delay by the government justified the grant of the order sought.
Court Disposition
Application allowed. Order of mandamus issued as prayed.
Orders
- An order of mandamus is issued compelling the Permanent Secretary, Office of the President, to pay Kshs. 1,669,763.56 being the decretal sum plus interest to the applicant in satisfaction of the decree issued on 31st July, 1996 in SRM Civil Suit No. 498 of 1991.
- No order as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Judicial Review 39 of 2012 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
IN THE MATTER OF:AN APPLICATION FOR AN ORDER OF MANDAMUS
AND
IN THE MATTER OF:THE SENIOR RESIDENT MAGISTRATE’S (MOMBASA) CIVIL SUIT NO. 498 OF 1991 – MOHAMED BAISHE VERSUS THE HON. ATTORNEY GENERAL
AND
IN THE MATTER OF: DECREE DATED 31ST JULY, 1996 IN SRMC (MOMBASA) CIVIL SUIT NO. 498 OF 1991 MOHAMED BAISHE VERSUS THE ATTORNEY GENERAL
BETWEEN
MOHAMED BAISHE..………………….……….……………...APPLICANT
AND
THE HON. ATTORNEY GENERAL……………….....…..RESPONDENT
THE PERMANENT SECRETARY (OFFICE OF THE PRESIDENT) –NAIROBI………………..………………INTERESTED PARTY
RULING
This is the Notice of Motion dated 13th July, 2012 by which the applicant seeks orders that:
“An order of mandamus do issue to compel the Interested Party herein being the Permanent Secretary, Office of the President to pay Kshs. 1,669,763. 56 being the decretal sum plus interest thereon arising out of and calculated from the sum of Kshs. 180,000/= (being the decretal sum originally awarded) plus interest thereon accruing at the rate of 14% per annum from the 31st July, 1996 plus costs to the applicant in satisfaction of the decree issued on 31st July, 1996 in SENIOR RESIDENT MAGISTRATE’S COURT (MSA) CIVIL SUIT NO. 498 OF 1991 (MOHAMED BAISHE VS. THE ATTORNEY GENERAL).”
The application was supported by the annexed affidavit of the applicant. MR. TAIB appeared for the applicant whilst MR. EREGI acted for the Hon. Attorney General. I have considered the application before me. I have perused the certificate of order against the Government issued on 31st July, 1996 (Annexture ‘MB002’) which awarded the applicant a sum of Kshs. 229,730. 15 together with interest thereon from 1st July, 1991 until payment in full. Several letters to the Attorney General seeking settlement went unanswered.
Mr. Eregi for the Attorney General did not oppose the application but merely sought time to arrange for payment of the sum due. In view of the fact that judgment was delivered in 1996, this matter has been left outstanding for over sixteen (16) years now. I am satisfied of the merit of this application and I do issue orders of mandamus as prayed. No order on costs.
Dated and delivered at Mombasa this 12th day of April, 2013.
M. ODERO
JUDGE
In the presence of:
No appearance for the Applicant
Mr. Eregi for the Respondent
Court Clerk Mutisya
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