[2018] KEHC 1726 (KLR)
The court found that the judgment sum was not disputed and that the respondent had sufficient time to factor the decretal sum into the 2018/2019 County annual budget, given that the judgment was delivered on 19th October 2017 and the financial year commences in July. The respondent's argument that the debt could not...
Source-derived case information.
- Citation
- [2018] KEHC 1726 (KLR)
- Parties
- Applicant: Patrick Atenya Asitiba; Applicant: Phanice Ondeche Asitiba; Respondent: City County of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1115 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Motion for Order of Mandamus
- Outcome
- Application allowed. Orders of mandamus granted as prayed.
- Legal Topics
- Mandamus Against Government, Enforcement of Judgments, Government Liability, Public Finance Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Atenya Asitiba
Applicant
Phanice Ondeche Asitiba
Applicant
City County of Nairobi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Motion for Order of Mandamus
Legal Issues
- 1 Whether an order of mandamus should issue to compel the respondent to pay the decretal sum of KES 12,000,000 as per the judgment in High Court Civil Suit No. 1115 of 2003.
- 2 Whether the respondent's budgetary process excuses non-payment of a court judgment.
- 3 Whether the applicants are entitled to costs as adjudged.
Ratio Decidendi
The court found that the judgment sum was not disputed and that the respondent had sufficient time to factor the decretal sum into the 2018/2019 County annual budget, given that the judgment was delivered on 19th October 2017 and the financial year commences in July. The respondent's argument that the debt could not be paid due to budgetary constraints was rejected as unconvincing. The law prohibits attachment against government property, making mandamus the only available remedy to enforce the judgment. The applicants were therefore entitled to an order of mandamus compelling the respondent to pay the decretal sum and costs as adjudged.
Court Disposition
Application allowed. Orders of mandamus granted as prayed.
Orders
- An order of mandamus is issued compelling the respondent to pay the applicants the sum of KES 12,000,000 in fulfilment of the court order issued in High Court Civil Suit No. 1115 of 2003.
- An order of mandamus is issued compelling the respondent to pay the costs in High Court Civil Suit No. 1115 of 2003 to the applicants as adjudged on 19th October 2017.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 1115 OF 2003
PATRICK ATENYA ASITIBA..................1st APPLICANT
PHANICE ONDECHE ASITIBA..........2ND APPLICANT
-V E R S U S –
CITY COUNTY OF NAIROBI...............RESPONDENT
RULING
1) Upon obtaining leave from this court, Patrick Atenya Asitiba andPhanice Ondeche Asitiba, the exparte applicants herein took out the motion dated 28. 6.2018 whereof they sought for the following orders:
a) THAT this honourable court do hereby issue an order of mandamus compelling the respondent to pay to the plaintiffs/applicants the sum of ksh.12,000,000 in fulfilment of the court order issued in High Court Civil Suit No. 1115 of 2003.
b)THAT honourable court do hereby issue an order of mandamus compelling the respondent to pay the costs in High Court Civil Suit No. 1115 of 2003 to the plaintiffs/applicants as adjudged on 19th October 2017.
The motion is supported by the affidavit of Patrick AtenyaAsitiba. When served with the motion, City County of Nairobi,the respondent herein, filed grounds of opposition.
2) I have considered the grounds stated on the face of the motionand the facts deponed in the supporting affidavit. I have further considered the grounds of opposition together with the rival oral submissions.
It is the submission of the applicants that they obtained ajudgment delivered in their favour on 19. 10. 2017 in the sum of ksh.12,000,000/= and against the respondent.
3) The applicants also stated that despite demanding for payment ofthe judgment sum, the respondent has neglected to settle the decree. This court was urged to grant the orders sought since the law shields the County Government from attachment in execution of court orders and decrees.
4) The respondent on the other hand have urged this court not toissue the orders sought because the judgment came in the middle of the County’s financial year and the debt has to be factored in the County Government’s budget in new financial year. It was stated that the respondent is ready to pay the applicants’ once money is allocated approved and passed by the County Assembly under Section 125 of the Public Finance Management Act (2012).
5) It is apparent from the arguments presented by both sides thatthe judgment sum is not disputed. It is also not in dispute that the County Secretary, Nairobi County being the accounting officer hence he is mandated to settle debts and liabilities of the County Governmenton its behalf.
6) In this case, the respondent has stated that the current debtcame to the knowledge of the respondent in the middle of the financial year. I find the last submission to be incorrect. The record clearly shows that this court delivered its judgment on 19thOctober 2017, therefore the respondent had ample time to initiate the process of having the decretal sum factored in the 2018/2019 County annual budget. It is a matter of public notoriety that the financial year commences in the month of July every year.
7) Under Section 21(4) of the Government Proceedings Act, noattachment by execution against Government properties is allowed. With respect, I agree that the available remedy at the moment is the order of mandamus directed against the County Secretary.
8) I am satisfied that the applicants are entitled to the orderssought. Consequently, the motion dated 28. 6.2018 is allowed interms of prayers (a) and (b).
Dated, Signed and Delivered in open court this 7th day of December, 2018.
J. K. SERGON
JUDGE
In the presence of:
.................................................... for the Applicant
..................................................... for the Respondent