[2013] KEHC 6413 (KLR)
The court found that the applicant had demonstrated compliance with the requirements for the grant of an order of mandamus. The applicant had obtained a judgment and certificate of order against the government, made a formal demand for payment, and the respondents had failed to comply. The 2nd respondent, as the...
Source-derived case information.
- Citation
- [2013] KEHC 6413 (KLR)
- Parties
- Applicant: Republic; Respondent: Hon. Attorney General; Respondent: Permanent Secretary, Office of the President, Provincial Administration & Internal Security; Applicant: Simon Wainaina Mwaura
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 40 of 2011
- Procedural Posture
- Judicial Review Application / Judgment
- Outcome
- application allowed
- Legal Topics
- Mandamus, Government Liability, Enforcement of Judgments, Public Officer Duties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Hon. Attorney General
Respondent
Permanent Secretary, Office of the President, Provincial Administration & Internal Security
Respondent
Simon Wainaina Mwaura
Applicant
Procedural Posture
Judicial Review Application / Judgment
Legal Issues
- 1 Whether the respondents have a statutory duty to satisfy the judgment and certificate of order issued against the government.
- 2 Whether the applicant has met the conditions for the grant of an order of mandamus.
Ratio Decidendi
The court found that the applicant had demonstrated compliance with the requirements for the grant of an order of mandamus. The applicant had obtained a judgment and certificate of order against the government, made a formal demand for payment, and the respondents had failed to comply. The 2nd respondent, as the accounting officer, has a statutory duty under Section 21 of the Government Proceedings Act to satisfy the judgment. The court concluded that the applicant had met all the conditions necessary for the issuance of an order of mandamus compelling the respondents to pay the decretal sum and interest as ordered by the subordinate court.
Court Disposition
application allowed
Orders
- An order of mandamus is issued directing the respondents to pay the applicant the sum of KES 244,245.40 together with interest at 12% per annum until payment in full.
- The applicant is awarded the costs of this application.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JR CASE NO. 40 OF 2011
REPUBLIC ..........................................................................APPLICANT
VERSUS
HON. ATTORNEY GENERAL ................................1ST RESPONDENT
PERMANENT SECRETARY
OFFICE OF THE PRESIDENT, PROVINCIAL
ADMINISTRATION & INTERNAL SECURITY......2ND RESPONDENT
EX-PARTE
SIMON WAINAINA MWAURA
JUDGEMENT
The ex-parte Applicant, Simon Wainaina Mwaura, was the Plaintiff in Nairobi CMCC No. 11358A of 2005. In the said suit he had sued the Attorney General and another for compensation as a result of damages suffered after his Motor Vehicle Registration No. KAC 006L Toyota Corolla collided with Motor Vehicle Registration No. GKA 988A belonging to the Office of the President, Provincial Administration and Internal Security. The Attorney General is the 1st Respondent and the Permanent Secretary in the Office of the President (Provincial Administration and Internal Security) is the 2nd Respondent. At the conclusion of the trial, the magistrate entered judgment in favour of the Applicant. On 3rd December, 2010 a certificate of order against the government was issued in the sum of kshs.244,245. 40 together with interest at the rate of 12% per annum until payment in full. The Attorney General was subsequently asked by the Applicant’s counsel to pay the amount indicated in the certificate of order but no payment has been forthcoming.
The Applicant has therefore sought the assistance of this court and through a notice of motion application dated 19th November, 2012 he prays for an order of mandamus to compel the respondents to satisfy the “Judgment, Decree and Certificate of Costs issued by the Chief Magistrate’s Court Milimani Nairobi in CMCC No. 11358”A” of 2005 Simon Mwaura vs. Elphas Murithi & the Hon. Attorney General entered on 17th June, 2010. ” He also prays for the costs of the application.
The respondents opposed the application through grounds of opposition dated 7th January, 2013. In summary the respondents claim that the Applicant has not supplied them with the necessary documents to enable them process payment.
The question is whether the Applicant has met the conditions for the grant of an order of mandamus. For an order of mandamus to issue, an applicant must show that the public office to which the order is targeted owes a statutory duty to him/her and has failed, neglected or refused to discharge that duty. An Applicant must also show that he has in clear terms asked the office or officer to perform the duty.
The Applicant before this court has demonstrated that he has written to the Attorney General asking for compliance with the court judgement. He has also shown that the respondents have failed to comply. The Applicant has also established that the 2nd Respondent being the accounting officer of the relevant government department has a duty under Section 21 of the Government Proceedings Act to pay the amount reflected in the certificate of order.
I therefore find that the Applicant has met the conditions for the grant of an order of mandamus. As such, an order of mandamus is issued directing the respondents to pay the Applicant the sum of kshs.244,245. 40 together with interest at the rate of 12% per annum until payment in full. The Applicant will also get the costs of this application.
Dated, signed and delivered at Nairobi this 7th day of August , 2013
W. K. KORIR,
JUDGE