[2014] KEHC 6218 (KLR)
The court held that under Section 21 of the Government Proceedings Act, liability of a government department to settle a judgment or decree only arises upon issuance and presentation of a certificate of judgment in the prescribed form. In this case, no such certificate was issued or presented to the Ministry of...
Source-derived case information.
- Citation
- [2014] KEHC 6218 (KLR)
- Parties
- Applicant: Republic; Respondent: Attorney General; Applicant: Isaac Mutembura Gatamuka
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Appeal 7 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Motion for Order of Mandamus
- Outcome
- application struck out as premature
- Judges
- A Mabeya
- Legal Topics
- Judicial Review, Mandamus Orders, Government Liability, Certificate of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Attorney General
Respondent
Isaac Mutembura Gatamuka
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Motion for Order of Mandamus
Legal Issues
- 1 Whether an order of mandamus can issue to compel payment of costs by a government department without a certificate of judgment in the prescribed form.
- 2 Whether the liability of the Ministry of Internal Security to pay the taxed costs had arisen in the absence of the requisite certificate.
Ratio Decidendi
The court held that under Section 21 of the Government Proceedings Act, liability of a government department to settle a judgment or decree only arises upon issuance and presentation of a certificate of judgment in the prescribed form. In this case, no such certificate was issued or presented to the Ministry of Internal Security. Therefore, the liability to pay the taxed costs had not arisen, rendering the application for mandamus premature. The court found that an order of mandamus cannot issue to compel payment where the statutory requirements have not been fulfilled. Consequently, the application was struck out as premature, with liberty to file fresh proceedings upon obtaining the...
Court Disposition
application struck out as premature
Orders
- Leave granted to file fresh proceedings after obtaining the requisite certificate of judgment.
- The motion is struck out.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT BUNGOM A
MISC. CIVIL APPEAL NO.7 OF 2012
IN THE MATTER OF AN APPLICATION BY ISAAC MUTEMBURA CATAMUKA FOR ORDERS OF MANDAMUS
AND
IN THE MATTER OF THE HIGH COURT OF KENYA AT BUNGOMA MISC. CIVIL APPL. NO. 126 OF 2005
AND
IN THE MATTER OF THE CIVIL PROCEDURE ACT CHAPTER 21 AND CIVIL PROCEDURES RULES 2010
AND THE LAW REFORM ACT CHAPTER 26 LAWS OF KENYA
AND
REPUBLIC........................................................................................APPLICANT
VRS
ATTORNEY GENERAL..................................................................RESPONDENT
EX-PARTE
ISAAC MUTEMBURA GATAMUKA.....................................................APPLICANT
AND
PERMANENT SECRETARY MINISTRY OF INTERNAL
SECURITY ANDPROVINCIAL ADMINISTRATION....................INTERESTED PARTY
RULING
1. Before me is a motion on notice dated 30/07/12. The same seeks an order of mandamus to compel the Permanent Secretary, Ministry of Internal Security and Provincial Administration and direct him to satisfy the decree on costs issued in Bungoma High Court Misc. Application No.126 of 2005 for Kshs.139,080/=. The motion was supported by the Affidavit of Isaac Mutembura Gatamuka sworn on 1st February, 2012.
2. I note from the record that leave to file the application was granted on 11/7/12. In the statement and Affidavit in support, the Ex-parte Applicant contended that he filed Bungoma High Court Misc. Civil Appl. No.126 of 2005 against the Attorney General in 2005. That those proceedings were for Judicial Review Orders of Prohibition which were determined in his favour and he was awarded the costs of the proceedings.
3. That pursuant thereto, the costs were taxed at Kshs.139,080/= and the Deputy Registrar of the High Court issued a certificate for costs for the said sum on 1st November, 2006. That the said certificate had been served upon the Attorney General but the costs has not been settled yet. That the Respondent in the present application is the accounting officer in the Ministry of Internal Security and he should be compelled to pay the amount as prayed.
4. The application was not opposed. I have considered the pleadings on record including the submissions of Mr. Onchiri, learned Counsel for the Ex-parte Applicant. My view is that the application cannot succeed.
5. This is so because, Section 21 of the Government Proceedings Act Chapter 40 Laws of Kenya, requires that a Certificate of Judgment be issued against the government after such Judgment. Liability of government or any accounting officer in any government department to settle any Judgment or decree only arises upon such certificate in the prescribed form being issued by the proper officer of the Court and being presented to the Officer in charge of the relevant government department. In this Case, there had to be a certificate in the prescribed form by the Deputy Registrar that the relevant government department was liable to pay the costs of Kshs.130,080/=. There was no such certificate.
6. Accordingly, the liability of the Ministry of Internal Security to pay the sum of Kshs.130,080/= had not arisen. The application was premature. An order of Mandamus compelling the Respondent to pay that of which liability has not arisen cannot issue.
7. Accordingly, I will set aside the leave and strike out the Motion with leave to the Ex-parte Applicant file fresh proceedings after obtaining the requisite certificate. I will make no orders as to costs.
DATED and delivered at Bungoma this 27th day of March, 2014.
A. MABEYA
JUDGE