[2023] KEHC 777 (KLR)

Republic v Attorney General; Towett (Exparte Applicant) (Miscellaneous Civil Application 8 of 2021) [2023] KEHC 777 (KLR) (10 February 2023) (Ruling)

Neutral citation: [2023] KEHC 777 (KLR)

Republic of Kenya

In the High Court at Kisii

Miscellaneous Civil Application 8 of 2021

REA Ougo, J

February 10, 2023

In The Matter Of An Application By John Lemaiyan Towett For Leave To Apply For Judicial Review Orders In The Nature Of Mandamus And In The Matter Of The Ogembo Principal Magistrate’S Court No 302 Of 2016 (John Lemaiyan Towett Vs The Attorney General Of Kenya)

Between

Republic

Applicant

and

Attorney General

Respondent

and

John Lemaiyan Towett

Exparte Applicant

Ruling

1. Vide a chamber Summons application dated the November 25, 2021 filed in Court on the December 3, 2021 the Ex-parte Applicant seeks that he be granted leave to apply for Judicial Review orders in the nature of Mandamus, to pay the Ex-parte Applicant, John Lemaiyan Towett, the decretal sum of Kshs 513,467. 50 inclusive of general damages , interest and costs all as assessed and or awarded in Kisii Chief Magistrate’s Court Case No 302 of 2016.

2. The application is supported by the Statement of John Lemaiyan Towett (John) and 4 grounds on the face of the application. According to John the Ex-parte Applicant John Lemaiyan Towett the decree holder in Kiss CMCC No 302 of 2016 obtained a judgment dated July 10, 2018 in his favor in the sum of Kshs 255,500. 00 and she was awarded Kshs 5,500. 00 as special damages all which remain unsatisfied to date. The Ex-parte Applicant’s costs were assessed at Kshs 81,680. 00. He obtained a certificate of Order against the Government of Kenya, dated October 18, 2021, pursuant to Order 29 rule 3 of the Civil Procedure Rules (2010) and Section 21 of the Government Proceedings Act. That to date the Government of Kenya through the Attorney General have failed to satisfy the decree in Ogembo PMCC No 302 of 2016.

3. The verifying affidavit of John Lemaiyan Towett gives details the background of the application together with attachments of the proceedings and judgment in Ogembo PMCC No 302 of 2016 including the Certificate of Order against the Government dated the November 3, 2021.

4. The application was opposed the Respondent filed Grounds of Opposition stating the following; that the application is premature and contrary to the relevant legal provision. That the orders sought cannot be issued as the same are not supported by factual evidence and/or law. That the application is bad in law, lacks merit and amounts to complete abuse of the Court process.

5. The application was canvassed by way of oral submissions. M/s Kusa for the Ex-parte Application sought the orders in the Chamber Summons and reiterated the facts as deponed by the Ex-parte Applicant John Lemaiyan Towett.

6. Miss Osebe for the Respondent argued that the application is pre-mature. She submitted that the conditions of granting a Mandamus order was laid out in the case of Dragon vs Canada and R vs Ex-parte J Wambui Ndirangu eKLR 2021. That the applicant has not satisfied all the conditions set out in law. That there must be prior demand of performance and reasonable time to comply. That the Applicant has satisfied the first 2 limps but not the 3rd one is in contention. That the judgment was delivered on the July 10, 2018. That they served documents on the Attorney General on the 11 November 2021 and the application was filed on the 3/12/2021 barely a month after they were served with the documents and that it was not sufficient time to forward the file to the client. That the delay by the Applicant to serve the documents is to cause interest to accrue and that therefore the application is pre-mature. That the court should give them time and therefore the application should be dismissed.

Determination 7. The issue for determination is whether the applicant is entitled to the orders sought. As correctly submitted by the Respondent the test for mandamus was set out inApotex Inc vs Canada ( Attorney General) which are;i.There must be a public legal duty to act;ii.The duty must be owed to the applicants;iii.There must be a clear right to the performance of that duty, meaning that;a.The applicants have satisfied all conditions precedent andb.There must have been:i.A prior demand for performance.ii.A reasonable time to comply with the demand unless there was outright refusal; andiii.An express refusal, or an implied refusal through unreasonable delay;iv.No other adequate remedy is available to the Applicantsv.The Order sought must be of some practical value or effect;vi.There is no equitable bar to the relief sought;vii.On a balance of convenience, mandamus should lie.

8. The tests must be satisfied before an order of mandamus is issued. In this matter the first 2 tests have been met, however the applicant has failed to show that there was a prior demand for performance before filing this application. There is a Certificate of Order against the Government dated November 3, 2021. There is no demand letter after the issuance of the said certificate. Refusal to pay has not been demonstrated or established. Failure to comply with the set conditions leaves this court with no choice but to decline the order of Mandamus that is being sought by the applicant. The application is premature and is therefore dismissed. Each party to bear its own cost.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT KISII THIS 10TH DAY OF FEBRUARY 2023. R. E. OUGOJUDGEIn the presence of:Miss Kusa For the ApplicantMiss Osebe For the RespondentOrwasa C/A