[2024] KEHC 2310 (KLR)
The court found that the ex-parte applicant had obtained a valid judgment and a Certificate of Order against the Government, which was duly served on the respondents. The respondents failed to satisfy the decree or participate in the proceedings. The applicant complied with the procedural requirements under Section...
Source-derived case information.
- Citation
- [2024] KEHC 2310 (KLR)
- Parties
- Applicant: Republic; Applicant: Okello Ouma Peter; Respondent: County Secretary of Migori County Government; Respondent: Chief Officer Finance Migori County Government
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Judicial Review E012 of 2023
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application allowed
- Judges
- RPV Wendoh
- Legal Topics
- Judicial Review Remedies, Mandamus Against Government, Government Liability, Enforcement of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Okello Ouma Peter
Applicant
County Secretary of Migori County Government
Respondent
Chief Officer Finance Migori County Government
Respondent
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the ex-parte applicant is entitled to an order of mandamus to compel the respondents to pay the decretal sum awarded in Migori CMCC No. 26 of 2020.
- 2 Whether the ex-parte applicant has complied with the requirements under Section 21 of the Government Proceedings Act for issuance of an order of mandamus.
Ratio Decidendi
The court found that the ex-parte applicant had obtained a valid judgment and a Certificate of Order against the Government, which was duly served on the respondents. The respondents failed to satisfy the decree or participate in the proceedings. The applicant complied with the procedural requirements under Section 21 of the Government Proceedings Act. Since the County Government's property cannot be attached and no other remedy is available, mandamus is the appropriate remedy to compel the respondents to perform their public duty and pay the decretal sum. The court therefore granted the order of mandamus, ordering the respondents to pay the sum awarded in the original suit together with...
Court Disposition
application allowed
Orders
- Respondents to pay Kshs. 1,053,172 to the ex-parte applicant.
- Respondents to pay costs of this application assessed at Kshs. 20,000 to the ex-parte applicant.
Full Case Text
Judgment text and source record
32 paragraphs
Republic v County Secretary of Migori County Government & another; Peter (Exparte Applicant) (Judicial Review E012 of 2023) [2024] KEHC 2310 (KLR) (7 March 2024) (Judgment)
Neutral citation: [2024] KEHC 2310 (KLR)
Republic of Kenya
In the High Court at Migori
Judicial Review E012 of 2023
RPV Wendoh, J
March 7, 2024
Between
Republic
Applicant
and
The County Secretary of Migori County Government
1st Respondent
The Chief Officer Finance Migori County Government
2nd Respondent
and
Okello Ouma Peter
Exparte Applicant
Judgment
1. The application for determination is a Notice of Motion dated 8/5/2023 brought under the provisions of Order 53 Rule 3 (1), (2), (3), 5, and 6 of the Civil Procedure Rules. The ex - parte applicant through the firm of Kerario Marwa & Co. Advocates is seeking the following orders: -i.That an order of Mandamus do issue from this court commanding the respondents to pay the applicant the decretal sum of Kshs. 1,105,141/= together with interest at 14% upto the date of payment, the said sum being the decretal sum in Migori CMCC NO. 26 of 2020. ii.Costs of the application be borne by the respondents.
2. The application is based on grounds appearing on the face thereof and the affidavit in support sworn by Okello Ouma Peter dated 30/3/2023.
3. According to the ex-parte applicant, he obtained judgment against the Migori County Government in Migori CMCC No. 26 of 2020 for now a total of Kshs. 1,105,141/= which amount continues to attract interest at 14% till date of payment.
4. The ex-parte applicant stated that the Certificate of Order against the Migori County Government was duly served upon it; that the 1st and 2nd respondents have refused to pay the decretal sums on the Certificate of Costs as ordered; that the properties of the County Government of Migori are not available for attachment and therefore the recourse available to the ex - parte applicant is the order of mandamus to be issued.
5. The application is not opposed. Despite numerous service, the respondents chose not to participate in these proceedings. There is an affidavit of service dated 17/11/2023 deponed by Kerario Marwa Counsel, on record. To further support his application, the ex-parte applicant filed written submissions dated 17/11/2023 which I have duly considered.
6. The ex parte applicant annexed OOP1” being the copy of the Certificate of Order against the Government dated 7/6/2022 which was also duly received by the office of the County Secretary of the County Government of Migori upon service.
7. It is not in dispute that judgement was delivered in favour of the ex-parte applicant in Migori CMCC No. 26 of 2020. The court awarded a total of Kshs. 636,350/= being the damages for breach of contract, interest from 20/1/2020 to the date of the assessment of costs at Kshs. 222,722/= and costs of the suit assessed at Kshs. 194,100/= which makes it a total of Kshs. 1,053,172/= but not Kshs. 1,105,141/= as stated by the ex-parte applicant.
8. The ex-parte applicant is simply seeking an order of mandamus to compel the respondents to do their public duty and satisfy the decree which they have failed to do to the detriment of the ex-parte applicant.
9. In the case of Republic vs. Attorney General & Another ex-parte Ongata Works Limited [2016] eKLR Odunga J (as he was then) referred to the case of R (Regina) v Dudsheath, Ex Parte, Meredith[1950] 2 ALL E.R. 741, AT 743, where Lord Goddard C. J. held as follows:It is important to remember that "mandamus" is neither a writ of course nor a writ of right, but that it will be granted if the duty is in the nature of a public duty, and specially affects the rights of an individual, provided there is no more appropriate remedy... "
10. Before an order of Mandamus can issue, the ex-parte applicant must comply with Section 21 of the Government Proceedings Act. In Kisya Investments Ltd v The A. G. [2005] 1KLR 74, the Court explained why the strict and elaborate procedure under that section has to be followed, that is to allow the Government time to enable it to make arrangements to satisfy the decree. In this case, the ex-parte applicant has satisfied the above requirement under the law and a Certificate of Order of costs dated 7/6/2022 was issued pursuant to Section 21 of the Government Proceedings Act.
11. Whether the ex-parte applicant is deserving of the order of Mandamus: Having found that the ex-parte applicant is fully compliant, the court finds that he is deserving of an order of Mandamus.
12. The application is merited. The respondents are hereby ordered to pay Kshs. 1,053,172/together with costs of this application assessed at Kshs. 20,000/= in favour of the ex-parte applicant.
DATED, DELIVERED AND SIGNED AT MIGORI THIS 7TH DAY OF MARCH,2024. R. WENDOHJUDGEJudgment delivered in the presence of;Mr. Achola for the Ex-Parte Applicant.Mr. Oywer for the Respondents.**Emma & Phelix Court Assistants.