[2009] KEHC 4255 (KLR)
The court found that the applicant had obtained a judgment and a Certificate of Order against the Government, and that the respondents, despite being served and given sufficient time, had failed to satisfy the decree or oppose the application. The absence of opposition and the continuing accrual of interest...
Source-derived case information.
- Citation
- [2009] KEHC 4255 (KLR)
- Parties
- Applicant: Said Hassan Hemed t/a Ghaniya Petrol Station; Respondent: Attorney General; Respondent: Permanent Secretary – Ministry of Livestock & Fisheries Development
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 1025 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Order of Mandamus
- Outcome
- Application for order of mandamus granted.
- Legal Topics
- Judicial Review, Mandamus, Government Liability, Execution of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Hassan Hemed t/a Ghaniya Petrol Station
Applicant
Attorney General
Respondent
Permanent Secretary – Ministry of Livestock & Fisheries Development
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Order of Mandamus
Legal Issues
- 1 Whether an order of mandamus should issue to compel the respondents to pay the decretal sum awarded in Kilifi CMCC No. 106 of 2006.
- 2 Whether the respondents have failed to satisfy the decree despite service and lapse of time.
Ratio Decidendi
The court found that the applicant had obtained a judgment and a Certificate of Order against the Government, and that the respondents, despite being served and given sufficient time, had failed to satisfy the decree or oppose the application. The absence of opposition and the continuing accrual of interest justified the issuance of an order of mandamus to compel payment of the decretal sum. The court therefore granted the order as prayed, holding that the applicant was entitled to enforcement of the judgment through judicial review remedies against the government officials responsible for payment.
Court Disposition
Application for order of mandamus granted.
Orders
- An order of mandamus shall issue compelling the Attorney General and the Permanent Secretary, Ministry of Livestock & Fisheries Development, to pay the decretal amount in Kilifi CMCC No. 106 of 2006.
- The respondents shall pay the costs of this application.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISCELLANEOUS APPLICATION 1025 OF 2006
REPUBLIC
AND
IN THE MATTER OF:
AND
IN THE MATTER OF: EXECUTION PROCEEDINGS IN THE HIGH
COURT OF KENYA AT MOMBASA
V E R S U S
IN THE MATTER OF: 1. PERMANENT SECRETARY – MINISTRY OF
LIVESTOCK & FISHERIES DEVELOPMENT
2. ATTORNEY GENERAL
SAID HASSAN HEMEDT/AGHANIYA PETROL STATION ... APPLICANT
V E R S U S
ATTORNEY GENERAL & ANOTHER ……………………… RESPONDENTS
R U L I N G
By this application, the applicant seeks an order of mandamus to issue against the Attorney General and the Permanent Secretary, Ministry of Livestock and Fisheries Development, to effect payment of the decretal amount in the sum of Kshs. 94,254/- plus costs and interest in the decree passed by the Court in Kilifi CMCC No. 106 of 2006, SAID HASSAN HEMED T/A GHANIYA PETROL STATION v. ATTORNEY GENERAL, and also prays that the costs of the application be provided for. The application is dated 16th November, 2006, and is made under O. LIII rule 3 of the Civil Procedure Rules.
The background to this application is that a judgment was entered in favour of the plaintiff in this matter on 1st December, 2005. It was followed by a Certificate of Order against the Government issued on 23rd February, 2006. In spite of the fact that the interest keeps on accumulating, the defendants are not moved.
Although the Respondents were served in sufficient time to attend court, they did not attend; nor did they file any replying affidavit or grounds of opposition. In the event, the application is unopposed.
I accordingly direct that an order of mandamus do issue in terms of prayer 1 of the Notice of Motion dated 16th November, 2006. The Respondents will also pay the costs of this application.
It is so ordered.
Dated and delivered at Mombasa this 15th day of May, 2009.
L. NJAGI
JUDGE