[2022] KEHC 13906 (KLR)

Republic v County Secretary of Migori County Government & another; Robi & another (Exparte Applicants) (Judicial Review 8B of 2022) [2022] KEHC 13906 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13906 (KLR)

Republic of Kenya

In the High Court at Migori

Judicial Review 8B of 2022

RPV Wendoh, J

October 13, 2022

IN THE MATTER OF AN APPLICATION BY VINCENT WAREMA ROBI & ELIZABETH GATI THOMAS FOR AN ORDER OF MANDAMUS AND IN THE MATTER OF GOVERNMENT PROCEEDINGS ACT 21(4) AND IN THE MATTER OF ORDER 22 & 29 OF THE CIVIL PROCEDURE RULES 2010 AND IN THE MATTER OF EXECUTION OF A DECREE FOR KSHS. 1,670,000/= TOGETHER WITH COSTS & INTEREST AND IN THE MATTER OF ORDER 53 (1) CIVIL PROCEDURE RULES 2O10

Between

Republic

Applicant

and

County Secretary of Migori County Government

1st Respondent

Chief Officer Finance Migori County Government

2nd Respondent

and

Vincent Werema Robi

Exparte Applicant

Elizabeth Gati Thomas

Exparte Applicant

Judgment

1. The application for determination is a notice of motion dated March 16,2022 the ex - parte applicants through the firm Thomas Muniko & Co Advocates seek the following orders: -a.That an order of mandamus do issue from this court commanding the respondents to pay the applicant the decretal sum of Kshs 1,670,000/= together with interest at 14% upto the date of payment, being the decretal sum in Kehancha PMCC No 12 of 2016. b.Costs of the application be borne by the respondents.

2. The application is based on grounds appearing on the face thereof and the supporting affidavit of Elixabeth Gati Thomas the 2nd ex- parte applicant sworn and dated March 16,2022 on behalf of the 1st ex-parte applicant.

3. According to the 2nd ex-parte applicant, they obtained judgment against the County Government of Migori in Kehancha PMCC No 12 of 2016 and Migori HCCA No 141 of 2019 for now Kshs 1,670,000/= The 2nd ex-parteapplicant further stated that the County Government of Migori has refused to honour the court decree and pay the applicant; that she has been advised by her Advocates that the property of the County Government cannot be attached and sold in execution of their certificate of order for Kshs 1,670,000/= because the law prohibits such attachment; that the certificate of costs together with the decree were duly served upon the County Government; that the matter in the subordinate court was a land matter but it was filed or registered as a civil case and the same was heard on merit and judgement delivered in their favour.

4. The application is not opposed. Despite numerous service, the respondents chose not to participate in these proceedings. There is an affidavit of service dated June 20, 2022 deponed by David Odoyo Onyango on record.

5. I have considered the application and the supporting documents annexed to the affidavit of the 2ndex-parte applicant. I have also considered the submissions of the ex-parte applicants.

6. It is not in dispute that a judgement was delivered in favour of the ex-parte applicants in Kehancha PMCC No 12 of 2016 and the court awarded a total of Kshs 1,670,000/= as general damages for trespass and the property damaged. The trial court further awarded costs of the suit to the ex-parte applicants and awarded costs of the suit and interest on the damages from the date of the judgement until payment in full.

7. The ex-parte applicants are 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 applicants.

8. In the case of Republic v Attorney General & Another ex-parte Ongata Works Limited(2016) eKLR Odunga J referred to the case of R (Regina) v Dudsheath, ex-parte, Meredith(1950) 2 ALL ER 741, AT 743, where Lord Goddard CJ 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... "

9. Before an order of mandamus can issue, the ex-parteapplicant must comply with section 21 of the Government Proceedings Act. In Kisya Investments Ltd v The AG(2005) 1KLR 74, the court explained why the strict and elaborate procedure under that section has to be followed, it is meant to allow the Government time to enable it 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 dated November 30, 2021 was issued pursuant to section 21 of the Government Proceedings Act.

10. Whether the ex-parte applicant is deserving of the order of Mandamus: Having found that the ex-parteapplicants are fully compliant, the court finds that they are deserving of an order of Mandamus. The application is allowed as prayed. Costs of this application are assessed at Kshs 30,000/= in favour of the ex-parte applicants.

11. The following orders do issue:-i.The respondents be and are hereby compelled to pay the ex-parte applicants a sum of Kshs 1,670,000/= together with costs and interest assessed at Kshs 234,300/= and Kshs 116,900/= respectively.ii.The respondents are also compelled to pay the ex - parte applicants a sum of Kshs 30,000/= being the costs of this application.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 13TH DAY OF OCTOBER, 2022. R. WENDOHJUDGEJudgment delivered in the presence of;No appearance for the Ex-Parte Applicants.No appearance for the Respondents.Nyauke Court Assistant.