[2022] KEHC 16043 (KLR)

Republic v Cabinet Secretary, Ministry of Internal Security & 3 others; Marsin & 7 others (Exparte) (Judicial Review Application 2 of 2021) [2022] KEHC 16043 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 16043 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Judicial Review Application 2 of 2021

F Gikonyo, J

November 3, 2022

Between

Republic

Applicant

and

The Cabinet Secretary, Ministry of Internal Security

1st Respondent

The Chief Administrative Secretary(CAS) Ministry of Internal Security

2nd Respondent

The Commissioner of Police

3rd Respondent

The Attorney General

4th Respondent

and

Chelimo A. Marsin

Exparte

David Langat

Exparte

Paul Rugut

Exparte

Paul Bii

Exparte

Samwel Mosonik

Exparte

Stanley Bett

Exparte

Raeli Maritim

Exparte

Alice Bett

Exparte

Judgment

1. On March 3, 2021,The court granted the ex parte applicants leave to apply for an order of mandamus to compel the respondents to release a sum of Ksh 1,922,086. 57/=. The decretal amount was pursuant to judgment delivered in Kisii High Court Constitutional Petition No 108 of 2010 and High Court Miscellaneous Application No 65 of 2011.

2. The ex parte applicants filed a substantive motion on March 17, 2022 seeking for the following orders;i.That the honourable court be pleased to grant/ issue orders of judicial review in the nature of mandamus compelling the respondents’ herein that is the cabinet secretary & chief administrative secretary, ministry of internal security, the commissioner of police and the honourable attorney general to satisfy and / or pay the decretal sum of Kshs 1,922,086. 57/=( One Million, Nine Hundred And Twenty Two Thousand, Eighty Six Shillings And Fifty Seven Cents) only, vide court judgment/ order dated the March 31, 2011 and the certificate of costs dated the October 9, 2014, to the counsel of the ex parte applicants, as contained in the court judgement , order and certificates of taxation and certificates of taxation and certificates under the Government Proceedings Act, respectively obtained in favour of the applicants vide Kisii High Court Constitutional Petition No 108 of 2010 and High Court Miscellaneous Application Number 65 of 2011. ii.That the ex parte applicant be at liberty to apply to the honourable court for all necessary and / or consequential orders that the honourable court may deem fit and just to grant.iii.That cost of this application be borne by the respondents and the interested parties.

3. The application is grounded on the statement dated October 25, 2021, the verifying affidavit and supporting affidavit sworn by Samwel Mosonik, the 5th ex parte applicant herein on October 25, 2021. The ex parte applicant averred that the honourable court awarded the ex parte applicant damages in accordance with the mandatory provisions of article 23(3) (a) (e) and (f) of theConstitution. In the sum of Kshs 1,922,086. 57 vide the judgment/ order dated March 31, 2011 and the certificate of cost dated October 9, 2014. but the respondents have failed to pay the sum, yet the ex parte applicants could not execute the decree. However, the court could compel by an order of mandamus for payment of the said sum.

4. The respondents were served with the said application however; they did not file any replies.

5. The application was canvassed by way of written submissions. None of the parties filed written submissions as directed by this court on May 5, 2022.

Analysis and determination 6. I have considered the application herein. The main issues for determination by this court are;a.Whether and order of mandamus should issue.b.Who bears the costs of the application?

7. The Court of appeal in Commissioner of Land v Kunste Hotel Ltd [1995-1998] 1EA 1 (CAK)laid the principle on Judicial review as follows: -'Judicial review is concerned not with the private rights or the merits of the decision being challenged but with the decision-making process. Its purpose is to ensure that an individual is given fair treatment by an authority to which he has been subjected’,' as was held in Republic v Secretary of State for Education and Science ex-parte Avon County Council [1991] 1 ALL ER 282.

8. In this case the applicants are seeking for a fair treatment. Failure by the respondents to pay the decretal sum impedes their right to enjoy the fruits of his judgment; which they argued, amounts to an injustice. The only way the applicants could obtain payment thereof is by way of order of mandamus as execution cannot issue against the government under section 21(4) of the Government Proceedings Act which states: -'Save as provided in this section, no execution, or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the government of any money or costs, and no person shall be individually liable under any order for the payment by the government or any government department, or any officer of the government as such, of any money or costs.'

9. A certificate of costs dated October 9, 2014 indicated the decretal sum of Kshs 1,922,086. 57/=. The applicants complied with section 21 of the said Act which states as follows:(1)Where in any civil proceedings by or against the government, or in proceedings in connection with any arbitration in which the government is a party, any order (including an order for costs) is made by any court in favour of any person against the government, or against a government department, or against an officer of the government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty- one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.(2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney- General.(3)If the order provides for the payment-of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the accounting officer for the government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:'

10. The respondents bear a public duty to satisfy the decree, and in case of failure on their part to discharge the duty, the court has power to compel them to do so. In R v Kenya National Examination Council ex-parte Gathengi & 8 Ors [1997] eKLR the three-judge bench of the Court of Appeal stated from the Halsbury’s Law of England, 4th Edn Vol. 7 pg 111 para 89 as follows:'The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.' At paragraph 90 headed 'the mandate' it is stated:'The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.'What do these principles mean? They mean that an order of mandamus will compel the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.'

11. See alsoR v Permanent Secretary Ministry of State for Provincial Ministry of State for Provincial Administration and Internal Security & Anor ex parte Fredrick Manoah Egungza [2012] eKLR as follows:'In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the government is protected and given immunity from execution and attachment of its property/goods under section 21(4) of the Government Proceedings Act.The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the government is found in section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the government should be issued by the court after expiration of 21 days after entry of judgment.'

12. Accordingly, the accounting officer as well as the Attorney General should be compelled to pay the decretal sum to the applicants.

The disposition 13. In the premises, I find that the ex parte applicant’s notice of motion dated March 16, 2022 and I issue the following orders:i.An order of mandamus be and is hereby issued to compel the respondent to pay the ex parte applicants the sum of Kshs 1,922,086. 57/= being the decretal sum awarded to the ex parte applicants in Kisii High Court Constitutional Petition No 108 of 2010 and High Court Miscellaneous Application Number 65 of 2011. ii.The ex parte applicants shall have the costs of the notice of motion dated March 16, 2022

14. It is so ordered.

DATED, SIGNED AND DELIVERED AT KILGORIS THROUGH TEAMS APPLICATION, THIS 3RD DAY OF NOVEMBER, 2022. ..................................F. GIKONYO M.JUDGEIn the presence of:CA – Mr. KasasoAll Parties - Absent