[2020] KEHC 7512 (KLR)
The court found that the applicant had obtained a valid decree and certified costs against the County Government of Kisumu, and had complied with all procedural requirements for enforcement. The respondent, despite being served, failed to settle the judgment debt or provide any explanation for non-payment. The court...
Source-derived case information.
- Citation
- [2020] KEHC 7512 (KLR)
- Parties
- Applicant: Caroline Achieng Ngare (suing as the legal representative and administrator of Peter Ngare Otieno, deceased); Respondent: Chief Officer, Finance, County Government of Kisumu
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 18 of 2019
- Procedural Posture
- Judicial Review Application / Ruling on Notice of Motion for Mandamus
- Outcome
- Application allowed. Order of mandamus granted.
- Judges
- TW Cherere
- Legal Topics
- Judicial Review, Mandamus Orders, Government Liability, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caroline Achieng Ngare (suing as the legal representative and administrator of Peter Ngare Otieno, deceased)
Applicant
Chief Officer, Finance, County Government of Kisumu
Respondent
Procedural Posture
Judicial Review Application / Ruling on Notice of Motion for Mandamus
Legal Issues
- 1 Whether the applicant is entitled to an order of mandamus compelling the Chief Officer, Finance, County Government of Kisumu to pay the decretal sum and certified costs awarded in Kisumu Chief Magistrate’s Court Case No. 154 of 2017.
- 2 Whether the respondent has failed in its statutory duty to settle the judgment debt and costs as required by law.
Ratio Decidendi
The court found that the applicant had obtained a valid decree and certified costs against the County Government of Kisumu, and had complied with all procedural requirements for enforcement. The respondent, despite being served, failed to settle the judgment debt or provide any explanation for non-payment. The court held that, since execution against the government is not permitted, the applicant had no other remedy but to seek an order of mandamus. The court emphasized that public officers are obligated to carry out their statutory duties and that denying a citizen the fruits of a lawful judgment is unacceptable under the Constitution, particularly Article 48 on access to justice....
Court Disposition
Application allowed. Order of mandamus granted.
Orders
- An order of mandamus is issued directed at the Chief Officer, Finance, County Government of Kisumu to pay the applicant Kshs. 2,920,000 being the decretal sum in Kisumu Chief Magistrate’s Court Case No. 154 of 2017 together with Kshs. 958,231 being the certified costs and interest thereon until payment in full.
- Costs of the application shall be borne by the respondent.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
(CORAM: CHERERE-J)
JUDICIAL REVIEW APPLICATION NO. 18 OF 2019
IN THE MATTER OF AN APPLICATION BY CAROLINE ACHIENG NGARE (suing as the legal representative and administrator of PETER NGARE OTIENO(deceased)
AND
IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW BY WAY OF MANDAMUS
AND
IN THE COUNTY GOVERNMENT OF KISUMU
AND
IN THE MATTER OF THE GOVERNMENT PROCEEDINGS ACT CAP 41 LAWS OF KENYA
BETWEEN
REPUBLIC.................................APPLICANT
AND
CHIEF OFFICER, FINANCE KISUMU
COUNTY GOVERNMENT...RESPONDENT
EXPARTE APPLICANT: CAROLINE ACHIENG NGARE
RULING
1. By a Notice of Motion dated 13th November, 2019 and filed on even date, the ex parte Applicant herein, seeks the following orders:
1. An order of Mandamus be directed at the Chief Officer, Finance, County Government of Kisumu to pay the Applicant Kshs. 2,920,000/- being the decretal sum in KISUMU CHIEF MAGISTRATE’S COURT CASE NO. 154 OF 2017together with Kshs. 958,231/- being the certified costs and interest thereon until payment in full
2. Costs of the application
2. The Applicant’s case is that on 21st June, 2019, she obtained a decree in KISUMU CHIEF MAGISTRATE’S COURT CASE NO. 154 OF 2017for Kshs. 2,920,000/- together with Kshs. 958,231/- being the certified costs and interest thereon.
3. The Applicant avers that upon the Respondent being serviced with a certificate of order against the Government, M/S M.J. OKUMU ADVOCATES by a letter dated 21st June, 2018 requested her advocate to quantify costs and disbursement and provide bank details which were subsequently supplied by a letter dated 26th June, 2018 but that the claim remains unsettled to date.
4. The issue for determination is whether this Court ought to grant the order sought herein.
5. 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 (See Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County Ex Parte Stanley Muturi(above).
6. The Respondent, though served with the Petition neither filed a response nor attended the hearing. The Respondent who is under an obligation to settle the claim has therefore failed to offer an explanation for its failure to settle the decretal sum.
7. I have considered the case of Republic v Attorney General & another Exparte James Alfred Koroso [2013] eKLR where it was held:
” In the present case the ex parte applicant has no other option of realising the fruits of his judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that he has been awarded is realised. Unless something is done he will forever be left baby-sitting his barren decree. This state of affairs cannot be allowed to prevail under our current Constitutional dispensation in light of the provisions of Article 48 of the Constitution which enjoins the State to ensure access to justice for all persons. Access to justice cannot be said to have been ensured when persons in whose favour judgements have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgement due to roadblocks placed on their paths by actions or inactions of public officers. Public offices, it must be remembered are held in trust for the people of Kenya and Public Officers must carry out their duties for the benefit of the people of the Republic of Kenya. To deny a citizen his/her lawful rights which have been decreed by a Court of competent jurisdiction is, in my view, unacceptable in a democratic society.”
8. In seeking an order of mandamus the Applicant is seeking, not relief against the County Government of Kisumu, but to compel its officials, and in particular the Respondent who the Chief Officer, Finance in the County Government of Kisumu to do what the County Government, through Parliament, has directed him to do.
Order
9. In view of the foregoing, I am satisfied that the Applicant has demonstrated that she is deserving of the relief sought. Consequently, the Notice of Motion dated 13th November, 2019 and filed on even date, is allowed on the following terms:
1. An order of Mandamus be and is hereby issued directed at the Chief Officer, Finance, County Government of Kisumu to pay the Applicant Kshs. 2,920,000/- being the decretal sum in KISUMU CHIEF MAGISTRATE’S COURT CASE NO. 154 OF 2017together with Kshs. 958,231/- being the certified costs and interest thereon until payment in full
2. Costs of this application shall be borne by the Respondent
DELIVERED AND SIGNED IN KISUMU THIS 12th DAY OF March, 2020
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Amondi
For Petitioner/Applicant - Ms. Achieng hb for Ms. Kuke
Respondent - N/A