[2024] KEHC 7540 (KLR)
The court found that the applicant, Otieno, Ragot & Co. Advocates, had properly obtained a taxed bill of costs and a certificate of order against the County Government of Kisumu. No reference or challenge to retainer was filed by the respondents, and the decree remained unsettled. Under the Government Proceedings...
Source-derived case information.
- Citation
- [2024] KEHC 7540 (KLR)
- Parties
- Applicant: Republic; Respondent: County Secretary, County Government of Kisumu; Respondent: County Executive Member for Finance, County Government of Kisumu; Respondent: County Government of Kisumu; Applicant: Otieno, Ragot & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review E009 of 2024
- Procedural Posture
- Judicial Review / Ruling on Notice of Motion for Mandamus
- Outcome
- application allowed
- Judges
- RE Aburili
- Legal Topics
- Judicial Review, Mandamus Orders, Government Liability, Enforcement of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
County Secretary, County Government of Kisumu
Respondent
County Executive Member for Finance, County Government of Kisumu
Respondent
County Government of Kisumu
Respondent
Otieno, Ragot & Co. Advocates
Applicant
Procedural Posture
Judicial Review / Ruling on Notice of Motion for Mandamus
Legal Issues
- 1 Whether the applicant is entitled to an order of mandamus to compel the County Government of Kisumu to settle the taxed costs as decreed.
- 2 Whether the Government Proceedings Act bars execution against government property and mandates mandamus as the remedy.
- 3 Whether the applicant followed the correct procedure in obtaining a certificate of order against the government.
Ratio Decidendi
The court found that the applicant, Otieno, Ragot & Co. Advocates, had properly obtained a taxed bill of costs and a certificate of order against the County Government of Kisumu. No reference or challenge to retainer was filed by the respondents, and the decree remained unsettled. Under the Government Proceedings Act, execution against government property is not permitted, making mandamus the only available remedy to enforce payment. The court held that the applicant had satisfied all procedural requirements and was entitled to an order of mandamus compelling the respondents to settle the decree, including interest and costs. The application was therefore allowed as prayed, with costs...
Court Disposition
application allowed
Orders
- An order of mandamus is issued compelling the respondents to settle the decree in the sum of Kshs.156,060 with interest at court rates of 14% per annum from 5th January 2023 until payment in full.
- The applicant is awarded costs of the application assessed at Kshs.20,000.
Full Case Text
Judgment text and source record
48 paragraphs
Republic v County Secretary, County Government of Kisumu & 2 others; Otieno, Ragot & Co. Advocates (Exparte Applicant) (Judicial Review E009 of 2024) [2024] KEHC 7540 (KLR) (14 June 2024) (Ruling)
Neutral citation: [2024] KEHC 7540 (KLR)
Republic of Kenya
In the High Court at Kisumu
Judicial Review E009 of 2024
RE Aburili, J
June 14, 2024
IN THE MATTER OF AN APPLICATION BY OTIENO, RAGOT & COMPANY ADVOCATES
AND
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY WAY OF MANDAMUS
AND
IN THE MATTER OF SECTION 2, 103, 147 & 148 OF THE PUBLIC FINANCE MANAGEMENT ACT, 2012
AND
IN THE MATTER OF SECTION 41 & 45 OF THE COUNTY GOVERNMENT ACT, 2012
AND
IN THE MATTER OF GOVERNMENT PROCEEDINGS ACT, CHAPTER 40, LAWS OF KENYA
AND
IN THE MATTER OF ARTICLES 10, 23 & 47 OF THE CONSTITUTION OF KENYA
Between
Republic
Applicant
and
The County Secretary, County Government of Kisumu
1st Respondent
The County Executive Member for Finance, County Government of Kisumu
2nd Respondent
The County Government of Kisumu
3rd Respondent
and
Otieno, Ragot & Co. Advocates
Exparte Applicant
Ruling
1. The Exparte Applicant Otieno, Ragot & Co. Advocates vide their Notice of Motion dated 30th April 2024 seek Judicial Review Order of Mandamus to compel the Respondents herein to settle decree in the sum of Kshs.156,060 with interest at court rates of 14% p.a from 5th January 2023 until payment in full being decree in Kisumu High Court Misc. Civil Application No. E020 of 2023.
2. The Applicant also prays for costs of the application.
3. The application which is supported by documents accompanying the application for leave to apply dated 4th April 2024 and affidavit of Jude Ragot sworn on 4th April 2024 is not opposed.
4. The Applicant is the advocate who filed Advocate/Client Bill of Costs which were taxed by the Deputy Registrar of this court.
5. No Reference was filed and neither is there any challenge as to retainer.
6. The decree is against the County Government and under the Government Proceedings Act, Cap 40 Laws of Kenya, no execution of decree by way of attachment and sale of property whether movable or immovable.
7. Mandamus is the only way by which the decree holder can compel settlement of decree passed by the court as stipulated in Section 21 of the Government Proceedings Act and Order 29 Rule 2 of the Civil Procedure Rules.
8. The Certificate of Order against the Government was issued on 2nd February 2024 in HC Misc. No. E020 of 2023. Decree was issued on 13th December 2023.
9. The professional services were rendered in Kisumu HCCC No. 5 of 2014.
10. The Applicant served the Respondent/Client with the itemized bill on 5th December 2022 as per the affidavit of service filed into court.
11. There has been no settlement of the said costs.
12. That being the case, I find merit in the Notice of Motion dated 30th April 2024. I grant the prayer for mandamus as prayed.
13. The Applicant shall have costs of the application assessed at Kshs.20,000.
14. Mention on 26th September 2024 to confirm settlement.
15. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 14THDAY OF JUNE, 2024R. E. ABURILIJUDGE