[2019] KEHC 2460 (KLR)
The court found that the dispute as to whether the withheld amount constituted withholding tax or an unpaid decretal sum was a contested factual issue. Such issues are not suitable for determination in judicial review proceedings, which are limited to reviewing the legality of administrative actions and not...
Source-derived case information.
- Citation
- [2019] KEHC 2460 (KLR)
- Parties
- Applicant: Republic; Respondent: County Government of Meru; Respondent: County Executive Committee (CEC); Respondent: County Secretary
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 9 of 2019
- Procedural Posture
- Judicial Review / Ruling on Leave to Apply for Order of Mandamus
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Judicial Review, Mandamus Orders, Public Body Liability, Tax Withholding, Decretal Sum Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
County Government of Meru
Respondent
County Executive Committee (CEC)
Respondent
County Secretary
Respondent
Procedural Posture
Judicial Review / Ruling on Leave to Apply for Order of Mandamus
Legal Issues
- 1 Whether leave should be granted to apply for an order of mandamus to compel payment of the decretal balance.
- 2 Whether the amount withheld by the respondents constitutes withholding tax or an unpaid decretal sum.
- 3 Whether the issue of withholding tax is properly determined in judicial review proceedings.
Ratio Decidendi
The court found that the dispute as to whether the withheld amount constituted withholding tax or an unpaid decretal sum was a contested factual issue. Such issues are not suitable for determination in judicial review proceedings, which are limited to reviewing the legality of administrative actions and not resolving substantive disputes of fact. The proper forum for resolving the nature of the withheld amount is the original suit, Meru HCCC No. 10 of 2015. Consequently, the application for leave to apply for an order of mandamus was dismissed, as the applicant had not demonstrated a clear refusal by the respondents to perform a statutory duty.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for leave to apply for an order of mandamus is dismissed.
- Costs of the application are awarded to the respondents.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW NO. 9 OF 2019
REPUBLIC...........................................................................APPLICANT
VERSUS
COUNTY GOVERNMENT OF MERU...................1stRESPONDENT
COUNTY EXECUTIVE COMMITTEE (CEC)....2ndRESPONDENT
COUNTY SECRETARY.........................................3RD RESPONDENT
RULING
Application dated 28th June 2019 was brought under certificate of urgency seeking that leave be granted to the applicant to apply for an order of Mandamus compelling the Respondents herein to pay a sum of Ksh 1591668 being unpaid balance of decretal amount in Meru HCCC No. 10 of 2015 Jumai Electrical Services Ltd vs County Government of Meru.
The applicant also sought for costs of application. This application was opposed. The application is supported by grounds on its face and statements on facts relied upon as well as affidavit of verification of statement of facts. The application is opposed by the Respondents in Replying Affidavit of Rufus Miriti sworn on 17th July 2019.
Having considred the application, the Replying affidavit and submissions as to whether leave should be granted to the exparte applicants to apply for an order of mandamus. It is noted with gratitude to the Respondent that it paid a substantial part of the decretal sums of Kshs 17,203, 797 and left a balance of Kshs 1,591,668 as withholding tax.
The view of this court is that there is contention as to whether the amount withheld is with holding tax or not and not that Respondents have refused to pay. This is an issue that should be canvansed in the mother suit HCC No. 10 of 2015 and not in Judicial Review proceedings.
The application is therefore dismissed with costs to the Respondents.
HON A. ONG’INJO
JUDGE
RULING DELIVERED, DATED AND SIGNED IN COURT ON 7TH NOVEMBER 2019.
In the presence of:
CA:- Kinoti
Mr Kithinji Advocate holding brief for J.G. Gitonga Advocate for Exparte Applicant.
Mr Laichena Mugambi Advocate for Respondent – No appearance.
HON. A.ONG’INJO
JUDGE