[2017] KEHC 2719 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

(JUDICIAL REVIEW & CONSTITUTIONAL DIVISION)

JUDICIAL REVIEW MISC CIVIL APPLICATION NO. 7A OF 2016

PETER WACHIRA GICHIRA…………………1STAPPLICANT

JOSEPH MUGERA NYAMU..……………….2ND APPLICANT

(suing as the legal administrators of the estate of)

TABITHA WAIRIMU WANGARI…………...…3RDAPPLICANT

-VERSUS-

THE PERMANENT SECRETARY,

MINISTRY OF DEFENCE…….............................RESPONDENT

RULING

1. The applicants Peter Wachira Gichira, Joseph Mugera Nyamu suing as the legal administrators of the estate of Tabitha Wairimu Wangari filed this Judicial Review against the Permanent Secretary Ministry of Defence vide an application dated 27th March, 2017 seeking orders of mandamus to compel the respondents to settle the decretal sum of Ksh.627, 790/= in terms of a decree in Wanguru P.M.C.C. 23/2013. That in addition the respondent be ordered to pay interests at 14% per annum on the decretal sum for defaulting in paying the ex-parte applicants’ money awarded by the Court.

2. The grounds upon which the application is brought are that the exparte applicants are the legal representatives of the estate of Tabitha Wairimu Wangari, deceased. The said Tabitha Wairimu Wangari was involved in a road traffic accident as she walked along Mwea-Embu Road on 27th October, 2011. The deceased was hit by a motor vehicle registration number KBM 528B which was owned by Kenya Army, department of defence and she sustained fatal injuries.

3. The applicant filed a civil case No. 23/2013 in the Principal Magistrate’s Court at Wanguru where the respondent participated upon being served. Judgment was entered in favour of the estate in the total sum of Ksh.627,790/=.

4. The respondent having fully participated in the trial before the magistrate and being aware of the judgment, refused, failed and/or neglected to settle the claim. The applicants then filed this claim.

5. The writ of mandamus can only be granted against public bodies to compel the performance of a public duty which is imposed on a person or a public body by a statute. It is granted where that person or body has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.

6. This has been determined by the Court of Appeal in the case of Lucy Murigo & 550 others -V- Minister for Lands & 4 others (2014) EKLR– where it was stated:

“An order for mandamus compels a public body to exercise a duty bestowed upon it by law or to judiciously exercise a discretionary power……………..

On our part we have examined the provisions of Order 53 of Civil Procedure Act which is the judicial basis for our application for mandamus. Rule 2 of Order 53 provides a six month limitation period for an order of certiorari. There is no limitation period to institute an action for mandamus. Limitation for purposes of mandamus is to be determined by the reasonableness and length of time between the cause of action and time for filing suit. The appellants by seeking an order for mandamus are in fact asserting a claim to ownership or interest in the suit properly. The Judicial remedy of mandamus was neither created nor established to settle ownership disputes nor to create nor to confer title to land.”

What the court is asserting in other words is that a party has a right to seek an order of mandamus to compel a public body to perform that duty imposed on it under the law.

7. It has further been stated:

“In the case of Republic –V- Director-General of East African Railways Corporation Ex Parte Kaggwa, 1977 KLR 194, it was correctly stated that an order for a mandamusdid not lie as a matter of course against a public officer and the court’s discretion would be exercised before such an order can issue and if the exercise of discretion to grant mandamus would constitute judicial interference with the executive arm of government, the same cannot issue.”

Kenya National Examination Council v Republic Ex-parte Geoffrey Gathenji Njoroge & 9 others [1997] EKLR The Court of Appeal at Nairobi stated;

“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 stature, 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 they duty to the detriment of a party who has a legal right to expect the duty to be performed.

8. In this case the applicant has shown by the statement of facts dated 22nd March, 2016 that the deceased was involved in a fatal accident with the motor vehicle KBM 528B which was owned by the department of defence. The Respondent became aware of the judgment and failed to settle the decretal sum now amounting to Ksh.627,790/=. The applicants have annexed a Police abstract showing that the accident occurred and that the vehicle belonged to the Kenya Army. A notice of intention to sue was served and reply confirming that the letter was received. The copy of the plaint shows that the Attorney General was sued and participated in the proceedings. The Respondent wrote to the counsel for the applicants requesting for a copy of the judgment. A copy of the decree was forwarded to the respondent way back on 10th October, 2014 but todate the decree has not been settled.

9. The respondents were served with application. They did not file a reply nor settle the decretal sum. There is no good reason why the respondents have not settled the decretal sum. The court must intervene to compel the respondents to do what they are required to do. It is upon the respondent to settle the decree. He has been made aware of the decree and there is no denial that he is supposed to settle it. I am of the view that the application has merits and I allow it. An order of mandamus is granted to compel the respondent to settle the decretal sum of Ksh.627,790/= with interests from the date of decree.

Dated and delivered at Kerugoya this 12thday of October, 2017.

L. W. GITARI

JUDGE

Read out in open Court, Mr. Kahiga Advocate holding brief for M/S Wangechi for Applicant; Respondent absent; Court assistant Naomi Murage this 12th day of October, 2017.

L. W. GITARI

JUDGE

12. 10. 2017