[2012] KEHC 383 (KLR)
The court found that the applicant had obtained a valid judgment and certificate of order against the Government, and that the respondent, through the accounting officer, was under a statutory duty to satisfy the decree. The respondent failed to respond or demonstrate any lawful reason for non-payment. Section 21(3)...
Source-derived case information.
- Citation
- [2012] KEHC 383 (KLR)
- Parties
- Applicant: Isaiah Oduor Ochanda; Respondent: Republic of Kenya; Respondent: Permanent Secretary Ministry of Defence
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 229 of 2012
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application allowed
- Legal Topics
- Mandamus Orders, Government Liability, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Oduor Ochanda
Applicant
Republic of Kenya
Respondent
Permanent Secretary Ministry of Defence
Respondent
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the respondent is under a legal duty to satisfy the decree and certificate of order issued against the Government in favour of the applicant.
- 2 Whether an order of mandamus should issue to compel payment by the accounting officer of the relevant government department.
Ratio Decidendi
The court found that the applicant had obtained a valid judgment and certificate of order against the Government, and that the respondent, through the accounting officer, was under a statutory duty to satisfy the decree. The respondent failed to respond or demonstrate any lawful reason for non-payment. Section 21(3) of the Government Proceedings Act imposes a mandatory obligation on the accounting officer to pay the certified amount. The applicant's right to payment was established, and the respondent's inaction justified the issuance of an order of mandamus. The court therefore allowed the application and granted the order sought, compelling the respondent to satisfy the decree and pay...
Court Disposition
application allowed
Orders
- An order of mandamus is issued compelling the respondent and the accounting officer of the Ministry of Defence to satisfy the decree and certificate of order in favour of the applicant.
- The respondent shall pay the costs of this application to the applicant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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REPUBLIC ..........................................................................................APPLICANT
VERSUS
ATTORNEY GENERAL ..................................................................RESPONDENT
PERMANENT SECRETARYMINISTRY OF DEFENCE......INTERESTED PARTY
EX-PARTE
ISAIAH ODUOR OCHANDA
JUDGMENT
The ex-parte applicant (Isaiah Oduor Ochanda) has come to this court by way of the notice of motion dated 30th May, 2012 asking for an order of mandamus to compel the Attorney General (the respondent) and the Permanent Secretary Ministry of Defence (the interested party) to satisfy the decree in Nairobi High Court Civil Case No. 1051 of 1996 Isaiah Oduor Ochanda v Attorney General.
In brief, the ex-parte applicant sued the Republic of Kenya through the Attorney General in Nairobi High Court Civil Case No. 1051 of 1996 as a result of injuries sustained in the course of his duties as a military officer and in a judgment delivered on 2nd March, 2011 K. H. Rawal, J (as she then was) entered judgment in his favour. A decree for kshs.19,078,1919. 78 was drawn on 29th June, 2011. On 10th October, 2011 a certificate of costs for the sum of kshs.351,518. 90 was issued to the applicant. As required by the law, on 14th November, 2011 a certificate of order in the sum Kshs. 22,916,828. 34 was issued against the Government.
Thereafter the applicant’s counsel wrote to the respondent demanding payment of the said amount but the respondent did not respond. The applicant eventually came to this court and obtained leave to commence these proceedings.
The respondent and the interested party did not file any response despite being served. I will therefore consider the material placed before the court by the applicant and reach a decision on the same.
The question is whether the respondent is under a duty to pay the said amount. Under Section 21(3) of the Government Proceedings Act Cap 40 the accounting officer of the government department concerned shall pay to the person entitled or his advocate the amount appearing in the certificate together with interest. The accounting officer is therefore under a legal obligation to make payment in respect of any certificate dully issued to a party by the court. The applicant has demonstrated that the respondent was asked to make payment but ignored the request.
From the material placed before the court it is evident that the applicant has established a case for the issuance of the orders sought. As such the application in question is allowed with costs to the applicant.
Dated and delivered at Nairobi this 21st day of November , 2012
W. K. KORIR,
JUDGE