[2021] KEHC 7336 (KLR)
The court found that the ex parte Applicant had met the threshold for leave to apply for an order of mandamus by annexing all relevant documents, including the arbitral award, decree, and Certificate of Order against the Government. The Applicant established an arguable case that the Respondent, as a public...
Source-derived case information.
- Citation
- [2021] KEHC 7336 (KLR)
- Parties
- Applicant: Republic; Applicant: Fairplan Systems Limited; Respondent: County Government of Kitui
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application E045 of 2021
- Procedural Posture
- Judicial Review Application / Leave to Apply for Order of Mandamus Granted; Directions for Substantive Motion
- Outcome
- Leave to apply for order of mandamus granted; directions for further proceedings issued.
- Judges
- P Nyamweya
- Legal Topics
- Judicial Review, Mandamus Orders, Enforcement of Arbitral Awards, Government Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Fairplan Systems Limited
Applicant
County Government of Kitui
Respondent
Procedural Posture
Judicial Review Application / Leave to Apply for Order of Mandamus Granted; Directions for Substantive Motion
Legal Issues
- 1 Whether the ex parte Applicant has met the threshold for leave to apply for an order of mandamus against the Respondent.
- 2 Whether the Applicant is entitled to compel payment of sums under a Certificate of Order against the Government based on an arbitral award.
Ratio Decidendi
The court found that the ex parte Applicant had met the threshold for leave to apply for an order of mandamus by annexing all relevant documents, including the arbitral award, decree, and Certificate of Order against the Government. The Applicant established an arguable case that the Respondent, as a public authority, has a statutory duty to pay the sums awarded under the arbitral award and confirmed by the court. The court therefore granted leave to apply for mandamus and issued directions for the filing and service of the substantive motion and responses.
Court Disposition
Leave to apply for order of mandamus granted; directions for further proceedings issued.
Orders
- Ex parte Applicant granted leave to apply for an order of mandamus to compel payment of Kshs.63,301,586.40 and Kshs.93,455 under the Certificate of Order against the Government.
- Costs of the Chamber Summons application dated 29th March 2021 shall be in the cause.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW APPLICATION NO. MISC E045 OF 2021
IN THE MATTER OF AN APPLICATION FOR LEAVE FOR JUDICIAL REVIEW ORDERS OF MANDAMUS
BETWEEN
REPUBLIC...............................................................APPLICANT
VERSUS
THE COUNTY GOVERNMENT OF KITUI.........RESPONDENT
EX PARTE APPLICANT:
FAIRPLAN SYSTEMS LIMITED
RULING NO 2
1. This Court delivered a ruling on 30th March 2021 , in which it granted Fairplan Systems Limited, the ex parte Applicant herein, leave to file a supplementary affidavit annexing the certified copy of the arbitral award and ruling thereon delivered in Nairobi High Court Miscellaneous Civil Application No. 289 of 2017: Fairplan Systems Limited -vs- County Government of Kitui within fourteen (14) days, in support of its Chamber Summons application dated 29th March 2021.
2. The ex parte Applicant is seeking leave in the said application to commence judicial review proceedings for an order of mandamus, to compel the Respondent to pay it Kshs.63,301,586. 40 and Kshs.93,455/=, being the amounts payable to the Applicant under the Certificate of Order against the Government dated 10th March 2021 with respect to Nairobi High Court Miscellaneous Civil Application No. 289 of 2017: Fairplan Systems Limited -vs- County Government of Kitui. The ex parte Applicant also seeks an order that the costs of this application be in the cause.
3. This Court granted the leave to file a supplementary affidavit after noting that while the ex parte Applicant annexed a copy of the Amended decree and the Certificate of Order against Government issued in Nairobi High Court Miscellaneous Civil Application No. 289 of 2017: Fairplan Systems Limited -vs- County Government of Kitui, it had not annexed a copy of the arbitral award and ruling delivered thereon in the said case, which are the basis for the said decree and certificate.
4. The ex parte Applicant has since then filed a supplementary affidavit sworn on 12th April 2021 by Arch. Julius M.F. Mutunga, it Managing Director, to which it annexed copies of the said Final Award of the Arbitral Tribunal, an Addendum to the Final Award, the original Decree and an Amended Decree.
5. In the premises, I find that the threshold of an arguable case has been met by the ex parte Applicant for the grant of leave, and I hereby order as follows:
i. Theex parteApplicant is granted leave to apply for an order of Mandamus to command and compel the Respondent topay it Kshs.63,301,586. 40 and Kshs.93,455/=, being the amounts payable to the Applicant under the Certificate of Order against the Government dated 10th March 2021 with respect to Nairobi High Court Miscellaneous Civil Application No. 289 of 2017: Fairplan Systems Limited -vs- County Government of Kitui
ii. The costs of the Chamber Summons applications dated 29th March 2021 shall be in the cause.
iii. The ex parte Applicant shall file and serve its substantive Notice of Motion within fourteen (14) days of today’s date, and shall also serve the Respondent with (i) the Chamber Summons applications dated 29th March 2021 and supporting documents, (ii) a copy of this ruling, (iii) the substantive Notice of Motion, and (iv) a mention notice,within the said fourteen (14) days.
iv. The Respondent shall file and serve its response to the substantive Notice of Motion within fourteen (14) days of service.
v. This matter shall be mentioned by email on 25th May 2021 for further directions.
vi. In view of the Ministry of Health directives on the safeguards to be observed to stem the spread of the current COVID-19 pandemic, this Court shall hear and determine the ex parte Applicant’s substantive Notice of Motion on the basis of the electronic copies of the pleadings and the written submissions filed by the parties.
vii. The parties shall file their pleadings and submissions electronically, by filing them with the Judiciary e-filing system, and send copies by electronic mail to the Deputy Registrar of the Judicial Review Division at judicialreview48@gmail.com and asunachristine51@gmail.com.
viii. The service of pleadings and documents directed by the Court shall be by way of personal service and electronic mail, and in the case of service by way of electronic mail, the parties shall also email a copy of the documents so served to the Deputy Registrar of the Judicial Review Division at judicialreview48@gmail.com with copies to asunachristine51@gmail.com.
ix. The parties shall also be required to file their respective affidavits evidencing service in the Judiciary’s e-filing system.
x. The Deputy Registrar of the Judicial Review Division shall put this matter on the Division’s causelist for mention by email on 25th May 2021.
xi. The Deputy Registrar of the Judicial Review Division shall send a copy of this ruling to the ex parte Applicant by electronic mail by close of business on Thursday, 15th April 2021.
xii. Parties shall be at liberty to apply.
6. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF APRIL 2021
P. NYAMWEYA
JUDGE