[2022] KEHC 13750 (KLR)
The court found that the applicant had obtained a judgment and decree against the respondents in Kericho CMCC No 169 of 2019 for Kshs 596,455, and the respondents had failed to pay the decretal sum despite being served with the court order. Since execution cannot be issued against the government under section 21(4)...
Source-derived case information.
- Citation
- [2022] KEHC 13750 (KLR)
- Parties
- Applicant: Republic; Respondent: County Secretary Bomet County Government; Respondent: Chief Officer, Finance/County Treasurer Bomet County Government; Applicant: Paul Kipkirui Korir (suing as the Legal Representative of) Evans Kipngeno (Deceased)
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 1 of 2022
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- Application allowed; order of mandamus granted.
- Judges
- AN Ongeri
- Legal Topics
- Mandamus Orders, Government Liability, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
County Secretary Bomet County Government
Respondent
Chief Officer, Finance/County Treasurer Bomet County Government
Respondent
Paul Kipkirui Korir (suing as the Legal Representative of) Evans Kipngeno (Deceased)
Applicant
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether an order of mandamus should issue to compel the respondents to pay the decretal sum awarded in Kericho CMCC No 169 of 2019.
- 2 Whether the respondents' failure to pay the judgment debt justifies judicial intervention.
Ratio Decidendi
The court found that the applicant had obtained a judgment and decree against the respondents in Kericho CMCC No 169 of 2019 for Kshs 596,455, and the respondents had failed to pay the decretal sum despite being served with the court order. Since execution cannot be issued against the government under section 21(4) of the Government Proceedings Act, the applicant's only recourse was to seek an order of mandamus. The respondents did not oppose the application or appear in court. The court held that the application was unopposed and allowed it, granting the order of mandamus as sought by the applicant.
Court Disposition
Application allowed; order of mandamus granted.
Orders
- An order of mandamus is issued compelling the respondents to pay Kshs 596,455 to the applicant as decreed in Kericho CMCC No 169 of 2019.
- The respondents shall bear the costs of the application.
Full Case Text
Judgment text and source record
31 paragraphs
Republic v County Secretary Bomet County Government & another; Korir (suing as the Legal Representative of) Evans Kipngeno (Deceased) (Exparte Applicant) (Judicial Review 1 of 2022) [2022] KEHC 13750 (KLR) (7 October 2022) (Judgment)
Neutral citation: [2022] KEHC 13750 (KLR)
Republic of Kenya
In the High Court at Kericho
Judicial Review 1 of 2022
AN Ongeri, J
October 7, 2022
Between
Republic
Applicant
and
County Secretary Bomet County Government
1st Respondent
Chief Officer, Finance/County Treasurer Bomet County Government
2nd Respondent
and
Paul Kipkirui Korir (suing as the Legal Representative of) Evans Kipngeno (Deceased)
Exparte Applicant
Judgment
1. The ex-parte applicant (hereinafter referred to as the applicant) filed an application dated January 27, 2022 seeking leave to file a judicial review application seeking orders of mandamus against the respondents.
2. The leave was granted and the applicant filed a judicial review application dated May 23, 2022 seeking an order of mandamus to compel the respondents to release Kshs 596,455/= which was awarded to the plaintiff in Kericho CMCC No 169 of 2019.
3. The judicial review application was supported by the affidavit of the applicant dated May 23, 2022.
4. The applicant avers that on November 26, 2020 judgment was delivered in his favour in Kericho CMCC No 169 of 2019, subsequently, the applicant was issued with a decree in the sum of Kshs 596,455/=.
5. The applicant was apprehensive that the respondents herein would not honour the judgment in the said case and as a result he was likely to suffer irreparable loss and damages.
6. The applicant filed written submissions which I have duly considered.
7. The applicant in his submissions reiterated that judgment was delivered in his favour in Kericho CMCC No 169 of 2019, subsequently, the applicant was issued with a decree in the sum of Kshs 596,455/= and the respondents despite being served with a court order failed to comply with the same and had not challenged the said judgment in any competent court within the republic, thereby depriving the applicant fruits of the judgment.
8. The applicant contended that filing this application was the only recourse available to him, to enable him obtain the fruits of the judgment in his favour since execution cannot be issued against the government as provided for under section 21 (4) of the Government Proceedings Act. The applicant cited the Court of Appeal case of R v Kenya National Examination Council ex-parte Gathengi & 8 Ors [1997] eKLR.
9. The applicant while taking cognizance of the fact that the court has the discretion to award costs, submitted that costs follow the event, in this case the respondents had neglected and/or reneged to pay the decretal amount which necessitated filing of the instant application and as such should be ordered to bear the costs of the application.
10. The respondents did not file any responses to the said application and neither did they appear in court to oppose the same.
11. I find that the said application is not opposed and the same is allowed in terms of prayer (a) of the application dated May 23, 2022.
Delivered, dated and signed at Kericho this 7th day of October, 2022AN ONGERIJUDGEJUDICIAL REVIEW NO.1 OF 2022 Page 2