[2024] KEHC 1599 (KLR)
The court found that the applicant had obtained a valid judgment and decree against the respondents for a liquidated sum and costs, which the respondents did not challenge within the statutory period. The applicant had served the decree and made repeated demands for payment, but the respondents failed to settle the...
Source-derived case information.
- Citation
- [2024] KEHC 1599 (KLR)
- Parties
- Applicant: Joas Components Company Limited; Respondent: County Secretary, Homa Bay County Government; Respondent: Public Service Board, Homa Bay County; Respondent: Internal Auditor, Homa Bay County Government; Respondent: Department of Transport & Infrastructure; Respondent: Homa Bay County Government
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Judicial Review E003 of 2023
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application allowed
- Judges
- KW Kiarie
- Legal Topics
- Mandamus Against Government, Enforcement of Decree, Government Liability, Public Law Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joas Components Company Limited
Applicant
County Secretary, Homa Bay County Government
Respondent
Public Service Board, Homa Bay County
Respondent
Internal Auditor, Homa Bay County Government
Respondent
Department of Transport & Infrastructure
Respondent
Homa Bay County Government
Respondent
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether an order of mandamus should issue to compel the respondents to pay the decretal sum and costs to the ex parte applicant.
- 2 Whether the respondents' failure to pay the decretal sum and costs after judgment and certificate of costs entitles the applicant to judicial review relief.
Ratio Decidendi
The court found that the applicant had obtained a valid judgment and decree against the respondents for a liquidated sum and costs, which the respondents did not challenge within the statutory period. The applicant had served the decree and made repeated demands for payment, but the respondents failed to settle the decretal sum and costs. Under section 21(4) of the Government Proceedings Act, execution against government property is prohibited, and the only available remedy is to seek an order of mandamus to compel payment. The court was satisfied that the applicant had met all legal requirements for the grant of mandamus, and the respondents had not opposed the application. Accordingly,...
Court Disposition
application allowed
Orders
- An order of mandamus is issued compelling the respondents to release to the ex parte applicant the sum of Kshs. 8,730,912 or thereabout being the decretal sum together with costs amounting to Kshs. 368,777 plus interest as per Homa Bay Chief Magistrates Court Civil Case No. E44 of 2021.
- The respondents shall pay the costs of this application to the ex parte applicant.
Full Case Text
Judgment text and source record
31 paragraphs
Republic v County Secretary, Homa Bay County Government & 4 others; Joas Components Company Limited (Exparte Applicant) (Judicial Review E003 of 2023) [2024] KEHC 1599 (KLR) (22 February 2024) (Judgment)
Neutral citation: [2024] KEHC 1599 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Judicial Review E003 of 2023
KW Kiarie, J
February 22, 2024
Between
Republic
Applicant
and
County Secretary, Homa Bay County Government
1st Respondent
Public Service Board, Homa Bay County
2nd Respondent
Internal Auditor, Homa Bay County Government
3rd Respondent
Department of Transport & Infrastructure
4th Respondent
Homa Bay County Government
5th Respondent
and
Joas Components Company Limited
Exparte Applicant
Judgment
1. Joas Components Company Limited, the ex parte applicant, moved the court by way of a Notice of Motion dated the 28th day of September 2023 under Order 53 Rules 3 of the Civil Procedure Rules for the following orders:a.That the honourable court be pleased to issue an order of mandamus against the respondent compelling them to release to the ex parte applicant a sum of kshs.8,730,912/- or thereabout being the decretal sum together with costs amount to kshs.368,777/- plus interest in Homabay Chief Magistrates Court Civil Case NO. E44 of 2021, which sum of money is being withheld by the respondent.b.That the cost of this application is provided for.
2. The application was premised on the following grounds:a.The applicant, Joas Components Co. LTD, filed a suit, namely Homa Bay Chief Magistrate’s Court Civil No. E44 of 2021 against the respondents for, among other things, a liquidated sum of kshs.8,730,912/- as a claim against services rendered by the applicant as the tendered contracted by the respondents for procurement maintenance of the following roads:i)Riat-Ondati-Ototo Road. Tender NO. HB/CTY/T&I/153/2014-2015. ii.Morou-Kanyabie Road in South Kabuoch Ward. Tender NO. HB/CTY/T&I/012/2015-2016. iii.Kaloko, Ukula Beach Access Road in Kaksingri West Ward. Tender No. HBC/T&I/012/2015-1016. iv.Ndiru-Onjiko Road in Kagan ward. Tender No. HB/CTYT&I/084/2015-2016. b.Thereafter, the court (Hon. R.B.N. Maloba) entered judgment on 8th September 2022 against the respondents under the following heads:i.Judgment in the sum of kss.8,730,912. 00. ii.Interest in (a) above at 14% per annum from the filing date.iii.Costs of the suitiv.Such further or other relief as this honourable court may deem fit and just.c.Upon the court entering judgment in the terms stated above, the applicant subsequently extracted a decree dated 22nd September 2022 in the sum of ksh.8,730,912. 00 (exclusive of cots) as of the aforementioned date. The said decree reads:i.Judgment in the sum of Kshs. 8,730,912. 00. ii.Interest in (a) above at the rate of 14% p.a. from the date of filing.iii.Costs of the suit.iv.Such further or other relief as this honourable court may deem fit and just.d.It is noteworthy that the respondents did not challenge the judgment or the subsequent decrees stated above within the statutory timelines spelt out under the provisions of the Civil Procedure Act, 2010 and that the decree is and remains valid and, therefore, enforced against the respondents.e.Upon lapse of the duration within which the respondents could challenge the said judgment and subsequent decree, the applicant served the respondents with the said decree and, after that, engaged the respondents vide correspondences and physical visits to its offices with a view of having the decretal sum settled as per the terms of the said decree.f.Despite written demands, oral representation and reminders, the respondents have failed and/or refused to settle the applicant’s decretal amount in the sum of kshs.8,730,912. 00 exclusive of costs as at 22nd September, 2022 to date.g.The applicant filed a party-to-party bill of costs on 20th September 2022 and assessed on 13th October 2022, and a certificate of costs was issued to the applicant dated 24th October 2022 in the sum of kshs.368,777/-.h.Under section 21(4) of the Government Proceedings Act, Chapter 40, Laws of Kenya, it prohibits any person and/or body from executing and/or attaching any property of the government in satisfaction of any money and/or costs. The applicable procedure is to compel the respondents by issuance of an order of Mandamus.i.This honourable court has the competent jurisdiction to grant the orders sought in this proceeding.
3. The respondents did not file any grounds of opposition to the application or submissions.
4. In their supporting affidavit, the ex parte applicant attached a copy of certificate of order of judgment and costs against the County Government of Homa Bay. This was for a decretal sum of kshs.8,730,912. 00 and kshs.368,777/-costs. This is what the company is claiming: that the respondents have failed to pay despite numerous demands.
5. I accordingly grant the orders sought in prayers a and b with costs.
DELIVERED AND SIGNED AT HOMA BAY THIS 22ND DAY OF FEBRUARY 2024KIARIE WAWERU KIARIEJUDGE