[2015] KEHC 6107 (KLR)
The court found that the Machakos County Government, having taken over the assets and liabilities of the Municipal Council of Machakos, is liable to satisfy the decree issued in HCCC No. 2630 of 1981. The Respondent's claim of inability to pay in lump sum does not absolve it from its legal obligation to satisfy the...
Source-derived case information.
- Citation
- [2015] KEHC 6107 (KLR)
- Parties
- Applicant: Francis Alexander Kimangi Muindi; Respondent: Municipal Council of Machakos; Respondent: Machakos County Government
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 23 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Judicial Review (mandamus) and Execution Directions
- Outcome
- Application allowed in part; Applicant at liberty to take steps for execution; costs to Applicant.
- Judges
- BT Jaden
- Legal Topics
- Judicial Review, Mandamus Orders, Execution of Decrees, Devolution Liabilities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Alexander Kimangi Muindi
Applicant
Municipal Council of Machakos
Respondent
Machakos County Government
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Judicial Review (mandamus) and Execution Directions
Legal Issues
- 1 Whether the Machakos County Government, as successor to the Municipal Council of Machakos, is liable to satisfy the decree in HCCC No. 2630 of 1981.
- 2 Whether the Applicant is entitled to directions regarding execution of the decree under Order 22 rule 7 (2)(j).
- 3 Whether the Respondent's inability to pay in lump sum constitutes refusal to satisfy the decree.
Ratio Decidendi
The court found that the Machakos County Government, having taken over the assets and liabilities of the Municipal Council of Machakos, is liable to satisfy the decree issued in HCCC No. 2630 of 1981. The Respondent's claim of inability to pay in lump sum does not absolve it from its legal obligation to satisfy the decree. However, the Applicant must seek specific directions as provided under Order 22 rule 7 (2)(j) of the Civil Procedure Rules. The court granted the Applicant liberty to take further steps for execution as per the rules, and awarded costs to the Applicant.
Court Disposition
Application allowed in part; Applicant at liberty to take steps for execution; costs to Applicant.
Orders
- The Applicant is at liberty to take any steps against the Respondent as provided under Order 22 rule 7 (2)(j) of the Civil Procedure Rules.
- Costs of the application awarded to the Applicant.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISC. CIVIL APPLICATION NO. 23 OF 2012
IN THE MATTER OF AN APPLICATION BY FRANCIS ALEXANDER KIMANGI MUINDI
APPLICATION FOR JUDICIAL REVIEW FOR AN ORDER OF MANDAMUS
AND
IN THE MATTER OF EXECUTION OF DECREE IN HCCC NO. 2630 OF 1981
BETWEEN
THE REPUBLIC
AND
MUNICIPAL COUNCIL OF MACHAKOS………………………… RESPONDENT
VERSUS
FRANCIS ALEXANDER KIMANGI MUINDI ........................................ APPLICANT
R U L I N G
1. The application dated 10/6/2013 is brought under Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1A & 3A of the Civil Procedure Act (Cap 21); the inherent powers of court and other enabling provisions of law.
2. The application seeks the following orders:-
1. “(Spent).
2. That appropriate directions be given with regard to the execution of the decree inHCCC No. 2630 of 1981.
3. ThattheMachakos County Governmenthaving taken over the assets and liabilities of theMachakos Municipal Councilbe compelled through its interim County Secretary to satisfy the decree inHCCC No. 2630of 1981.
4. Thatthe costs of this application be borne by the said Government.”
3. The exparte Applicant, Francis Alexander Kimangi Muindi (hereinafter Applicant) has deponed that on 29/6/2011, this court decreed in HCCC No. 2630/1981 that the Municipal Council of Machakos do pay him the sum of Kshs.7,815,680/= together with costs and interest. Subsequently, the Municipal Council of Machakos was ordered by order of mandamus to satisfy the decree but refused to satisfy the same. That following the devolution process, all the functions of the Municipal Council of Machakos were taken over by the Machakos County Government. Efforts made to have the Machakos County Government to make good the payment have not born any fruit.
4. The application is opposed. According to replying affidavit by Francis Mwaka, the Secretary to the County Government of Machakos, the Respondent has not refused to satisfy the decree but is unable to pay the money in a lump sum as its resources are constrained. It is further averred that the Applicant should come out clearly on the nature of the directions sought under Order 22 rule 7 (2) (j).
5. During the hearing of the application, the parties relied on the affidavit evidence.
6. The application is essentially not opposed save for the mode of payment.
7. On the question of directions, I agree with the Respondent that the Applicant ought to seek specific directions as enumerated under Order 22 rule 7 (2)(j).
8. The Applicant is therefore at liberty to take any steps against the Respondent as provided under Order 22 rule 7 (2) (j). Costs to the Applicant.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 18thday of February 2015.
………………………………………
B. THURANIRA JADEN
JUDGE