[2008] KEHC 67 (KLR)
The court found that the applicant had obtained a valid judgment and decree against the government, which was duly served on the Attorney General. The respondent failed to contest the application or provide any reason for non-payment. In the absence of any lawful justification for withholding payment, the applicant...
Source-derived case information.
- Citation
- [2008] KEHC 67 (KLR)
- Parties
- Applicant: Peter P.M. Ndururi; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 345 of 2005
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Legal Topics
- Mandamus, Enforcement of Judgments, Government Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter P.M. Ndururi
Applicant
The Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the applicant is entitled to an order of mandamus to compel payment of a judgment debt by the government.
- 2 Whether the respondent has provided any lawful justification for non-payment of the decretal sum.
Ratio Decidendi
The court found that the applicant had obtained a valid judgment and decree against the government, which was duly served on the Attorney General. The respondent failed to contest the application or provide any reason for non-payment. In the absence of any lawful justification for withholding payment, the applicant was entitled to an order of mandamus compelling the Permanent Secretary, Ministry of Health, to pay the decretal sum and costs. The court therefore granted the orders sought in the Notice of Motion dated 20th April 2005.
Court Disposition
application allowed
Orders
- An order of mandamus is issued compelling the Permanent Secretary, Ministry of Health, to pay the applicant Kshs.2,345,261 and costs of the motion.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Miscellaneous Application 345 of 2005
PETER P.M. NDURURI……………………………….APPLICANT
Versus
THE ATTORNEY GENERAL…………………..RESPONDENT
JUDGMENT
Before me is the Notice of Motion dated 20th April 2005 in which Peter P.M. Ndururi seeks an order of mandamus to issue against the Hon. The Attorney General and the Permanent Secretary Ministry of Health to compel the Permanent Secretary to pay the Applicant a sum of Kshs.2,345,261/= and costs of this motion. The motion is brought pursuant to Order 53 Rule 3 Civil Procedure Rules, supported by a statement dated 7th March 2005 and a verifying affidavit of Samuel Gakuru, Counsel for the Applicant.
The Plaintiff got judgment in CMCC 11250/03 for a sum of Kshs.1,992,757/= plus costs and interest against the Respondent. The Applicant has exhibited a decree dated 17th September 2004 and a certificate of order against the Government dated 26th October 2004. They were served on the Attorney General on 9th November 2004 in terms of the Affidavit of Service of Patrick Juma Yuka sworn on 8th March 2005.
The Respondents were served with this application and Counsel for the Respondent appeared severally but no reply has been filed to the motion. The Respondent was served with the hearing notice for today but there was no appearance. There is no contest to the applicants claim. There is evidence that the sum is due and owing from the Respondent following the judgment in CMCC 11250/03 and the Applicant is entitled to payment. No reason has been given by the Respondent as to why there has been no payment and this court hereby issues an order of mandamus in terms of prayers 1 & 2 of the Notice of Motion dated 20th April 2005.
Dated and delivered this 19th day of September 2008.
R.P.V. WENDOH
JUDGE
Present:
Gakuru for the Applicant
Elizabeth: Court Clerk