[2019] KEHC 6303 (KLR)
The court found that the applicant failed to demonstrate that the decree was served on the County Executive in Charge of Finance, who is the accounting officer responsible for payment under the County Governments Act. Without proof of proper service, the application for mandamus was unsustainable. The court...
Source-derived case information.
- Citation
- [2019] KEHC 6303 (KLR)
- Parties
- Applicant: Galexon Kenya Limited; Respondent: Chief Officer Department of Trade, Industry, Tourism & Entrepreneurship, County Government of Vihiga; Respondent: County Executive Committee Member for Finance, County Government of Vihiga
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application 6 of 2019
- Procedural Posture
- Judicial Review Miscellaneous Application / Ruling
- Outcome
- application dismissed
- Judges
- TW Cherere
- Legal Topics
- Judicial Review, Mandamus, Public Officer Liability, Decree Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Galexon Kenya Limited
Applicant
Chief Officer Department of Trade, Industry, Tourism & Entrepreneurship, County Government of Vihiga
Respondent
County Executive Committee Member for Finance, County Government of Vihiga
Respondent
Procedural Posture
Judicial Review Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the applicant is entitled to an order of mandamus compelling the respondents to settle the decretal sum awarded in KISUMU HCCC 18 OF 2017.
- 2 Whether the decree was properly served on the accounting officer as required by law.
Ratio Decidendi
The court found that the applicant failed to demonstrate that the decree was served on the County Executive in Charge of Finance, who is the accounting officer responsible for payment under the County Governments Act. Without proof of proper service, the application for mandamus was unsustainable. The court emphasized that judicial review remedies are only available where statutory requirements, such as service on the correct officer, have been met. Consequently, the application was disallowed.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 2nd May, 2019 and filed on 21st May, 2019 is disallowed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
JUDICIAL REVIEW MISC APPLICATION NO. 06 OF 2019
IN THE MATTER OF AN APPLICATIONBY GALEXON KENYA LIMITEDFOR AN ORDER OF MANDAMUS COMPELLING THECHIEF OFFICER DEPARTMENT OF TRADE, INDUSTRY, TOURISM & ENTERPRENEURSHIP, COUNTY GOVERNMENT OF VIHIGA AND COUNTY EXECUTIVE COMMITTEE MEMBER FOR FINANCE, COUNTY GOVERNMENT OF VIHIGA TO PAY DECRETAL SUM TOGETHER WITH COSTS PURSUANT TO KISUMU HCCC 18 OF 2017
AND
IN THE MATTER OF THE COUNTY GOVERNMENT ACT, 2012
AND
IN THE MATTER OF THE PUBLIC FINANCE ACT, 2012
AND
IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015
BETWEEN
REPUBLIC...............................................................................APPLICANT
AND
CHIEF OFFICER DEPARTMENT OF TRADE, INDUSTRY,
TOURISM & ENTERPRENEURSHIPCOUNTY
GOVERNMENT OF VIHIGA.....................................1ST RESPONDENT
COUNTY EXECUTIVE COMMITTEE MEMBER FOR FINANCE
COUNTY GOVERNMENT OF VIHIGA.................2NDRESPONDENT
EXPARTE APPLICANT: GALEXON KENYA LIMITED
RULING
1. By a Notice of Motion dated 02nd May, 2019 and filed on 21st May, 2019, the ex parte applicant herein, seeks the following orders:
1)That leave be granted to the applicant herein to apply for Judicial Review Order to wit, an Order of Mandamus commandingChief Officer Department of Trade, Industry, Tourism & Enterpreneurship, County Government of Vihiga and County Executive Committee Member for Finance, County Government of Vihiga to settle the decretal sum together with costs as awarded in KISUMU HCCC 18 OF 2017
2)That costs provided for
2. According to the Applicant, it obtained a decree in KISUMU HCCC 18 OF 2017 requiring the County Government of Vihiga to pay it Kshs. 21,798,450/- together with interest and costs.
3. Cyril Mukhunji Makatiani in his verifying affidavit sworn on 02nd May, 2019 and filed on 21st May, 2019 avers that the decree was served upon the respondents who have failed to settle the decretal sum.
4. The issue for determination is whether this Court ought to grant the order sought herein.
5. Under the County Governments Act No. 17 of 2012, the County Executive in Charge of Finance or by whatever other name the officer may be described, is the one under obligation to pay funds, in the capacity of the accounting officer.
6. It must always be remembered that a judicial review application is neither a criminal case nor a civil suit hence the application ought to be brought against the person who is bound to comply with the orders sought therein (SeeRepublic v County Chief Officer, Finance & Economic Planning, Nairobi City County Ex Parte Stanley Muturi [2016] eKLR). In this case the 2nd Respondent is the Accounting Officer of the County Government of Vihiga.
7. The Applicant has not demonstrated that the decree was served on the County Executive in Charge of Finance. The contention that the said officer has declined to settle the decretal sum is therefore unsustainable.
Order
8. In the result I disallow the Notice of Motion 02nd May, 2019 and filed on 21st May, 2019 with no order for costs.
DATED, DELIVERED AND SIGNED THIS 27thDAY OF June, 2019
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Felix
For Petitioner/Applicant - Mr. Kaniaru
1st Respondent - N/A
2nd Respondent - N/A