[2020] KEHC 8676 (KLR)
The court found that the ex-parte applicants had obtained valid judgments and decrees against the respondent, which remained unsatisfied. The respondent did not oppose the application on legal grounds but merely proposed how the damages should be applied, which the court found untenable. The statutory and...
Source-derived case information.
- Citation
- [2020] KEHC 8676 (KLR)
- Parties
- Applicant: Republic; Applicant: FO (Minor suing through his mother and next friend (LOP) and 27 others; Respondent: County Chief Officer, Finance & Economic Planning, County Government of Busia
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 187 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Order of Mandamus
- Outcome
- application allowed with costs
- Judges
- KW Kiarie
- Legal Topics
- Judicial Review, Mandamus Orders, Enforcement of Judgments, Public Officer Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
FO (Minor suing through his mother and next friend (LOP) and 27 others
Applicant
County Chief Officer, Finance & Economic Planning, County Government of Busia
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Order of Mandamus
Legal Issues
- 1 Whether an order of mandamus should issue to compel the respondent to pay the decretal sum owed to the applicants as per judgments and decrees of the Chief Magistrate's Court.
- 2 Whether the respondent's proposal on application of damages is tenable in law.
- 3 Whether the respondent's failure to satisfy the decrees warrants the grant of the orders sought.
Ratio Decidendi
The court found that the ex-parte applicants had obtained valid judgments and decrees against the respondent, which remained unsatisfied. The respondent did not oppose the application on legal grounds but merely proposed how the damages should be applied, which the court found untenable. The statutory and constitutional framework obliges public officers to comply with court orders and satisfy decrees. The court was satisfied that the application for mandamus was merited and granted the orders sought, directing the respondent to satisfy the decrees within sixty days, failing which the applicants would be at liberty to seek further orders.
Court Disposition
application allowed with costs
Orders
- The respondent to satisfy the decrees herein within sixty (60) days of this ruling.
- Failure to satisfy the decree, the ex-parte applicants be at liberty to move the court for other appropriate orders.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
MISCELLANEOUS CIVIL APPLICATION NO. 187 OF 2018.
REPUBLIC.......................................................................................APPLICANT
VERSUS
FO (Minor suing through his mother and next friend
(LOP) AND 27 OTHERS ............EX-PARTE APPLICANT
AND
COUNTY CHIEF OFFICER, FINANCE & ECONOMIC
PLANNING COUNTY GOVERNMENT OF BUSIA ............RESPONDENT
RULING
1. The ex-parte applicants herein moved the court by way of Notice of Motion under sections 8 &9 of the Law Reform Act Cap 26 Laws of Kenya, Order 53 Rules 3(1)&(3) of the Civil Procedure Rules and Article 47 of the Constitution of Kenya. They are seeking the following orders:
a) That an order of mandamus do issue to compel the County Chief Executive Officer, Finance & Economic Planning to pay to the ex-parte applicants the cumulative sum of Ksh.47,372,206/= being the decretal amount owed to them arising from the judgments and decrees obtained in the Chief Magistrate’s Court at Busia in Busia CMCC Nos: 438 of 2015, 439 of 2015, 440 of 2015, 441 of 2015, 442 of 2015, 443 of 2015, 444 of 2015, 445 of 2015, 446 of 2015, 447 of 2015, 448 of 2015, 449 of 2015, 450 of 2015, 451 of 2015, 452 of 2015, 453 of 2015, 454 of 2015, 455 of 2015, 456 of 2015 457 of 2015, 458 of 2015, 459 of 2015, 460 of 2015, 58 of 2016, 59 of 2016, 60 of 2016, 61 of 2016 and 62 of 2016 together with interest occurring thereon at the rate of 14% per annum as at from the time of each decree until payment in full.
b) That the respondent shall comply by satisfying the said decrees and interests on the amount cited hereinabove within fourteen (14) days from the date of service of the order.
c) That in default, Notice to show cause do issue against the persons occupying the office of the respondent for him/her to show cause why he/she should not be cited for contempt of court and committal to civil jail.
d) That costs of this application be provided for.
2. The application is premised on the following grounds:
a) That the ex-parte applicants had instituted various claims on behalf of the minors against the respondent herein.
b) That the ex-parte applicants had sought compensation for the minors as a result of medical negligence on the part of the respondent, its agents, servants and/or employees.
c) That a judgment was delivered on 19th December 2017 in favour of the applicants but the respondent has failed to satisfy the same.
d) That the respondent be compelled to pay.
3. The respondent did not file any grounds of opposition but instead filed a proposal for payment.
3. I have perused the supporting affidavit to the application and the supplementary affidavit sworn by Mathew Edejai on behalf of the ex-parte applicants and the replying affidavit sworn by Dr. Isaac Omeri for the respondent.
4. It is not tenable for the respondent to propose how the ex-parte applicants will apply the money paid as damages. The respondent’s duty is to ensure the decrees have been satisfied.
5. Since there were no grounds for opposition, and having satisfied myself that the application is merited, I will allow the application with costs on the following terms:
a) The respondent to satisfy the decrees herein within sixty (60) days of this ruling.
b) Failure to satisfy the decree, the ex-parte applicants be at liberty to move the court for other appropriate orders.
DELIVEREDandSIGNEDatBUSIAthis28th day of January, 2020
KIARIE WAWERU KIARIE
JUDGE