[2017] KEHC 4401 (KLR)
The court found that the County Secretary, Nairobi County Government, as a judgment debtor, has a legal duty to settle the decree issued in HCC 1595/2002. Since execution cannot issue against the government, judicial review by way of mandamus is the proper remedy to compel payment. The respondent had failed to...
Source-derived case information.
- Citation
- [2017] KEHC 4401 (KLR)
- Parties
- Applicant: Republic; Respondent: County Secretary, Nairobi County Government; Applicant: Samuel Mbugua Gachuhi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 29 of 2017
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application allowed
- Judges
- RE Aburili
- Legal Topics
- Judicial Review, Mandamus, Government Liability, Decree Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
County Secretary, Nairobi County Government
Respondent
Samuel Mbugua Gachuhi
Applicant
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether an order of mandamus should issue to compel the County Secretary, Nairobi County Government, to settle the decree in HCC 1595/2002.
- 2 Whether the respondent has a legal duty to settle the judgment debt where execution cannot issue against the government.
Ratio Decidendi
The court found that the County Secretary, Nairobi County Government, as a judgment debtor, has a legal duty to settle the decree issued in HCC 1595/2002. Since execution cannot issue against the government, judicial review by way of mandamus is the proper remedy to compel payment. The respondent had failed to settle the decree despite repeated demands and undertakings, and had not opposed the application. The court held that failure to grant mandamus would render the judgment a mere paper judgment and undermine the applicant's right to the fruits of the judgment. Accordingly, the court granted the order of mandamus as sought, directing the respondent to settle the decree within 45 days.
Court Disposition
application allowed
Orders
- Judicial review order of mandamus granted as sought in prayer No. 1 of the motion dated 28th February 2017.
- Respondent to settle the decree in the sum of KES 1,200,703.67 as at 31st December 2016 with further interest within 45 days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
JUDICIAL REVIEW NO. 29 OF 2017
IN THE MATTER OF ORDER53 RULE 1 OF THE CIVIL PROCEDURE RULES
AND
IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT, CAP 26 LAWS OF KENYA
AND
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY JUDICIAL REVIEW FOR AN ORDER OF MANDAMUS
REPUBLIC………………………………………….......….....……….APPLICANT
VERSUS
COUNTY SECRETARY, NAIROBI COUNTY GOVERNMENT...….RESPONDENT
SAMUEL MBUGUA GACHUHI…………..........………….EXPARTE APPLICANT
JUDGMENT
1. The exparte applicant was on 15th February 2017 granted leave to institute Judicial Review proceedings seeking for mandamus to compel the respondent to settle decree in Nairobi HCC 1595/2002 Samuel Mbugua Gachuhi vs The City Council of Nairobi & 3 others . The main motion was filed on 7th March 2017 within the stipulated 21 days. The motion which is dated 28th February 2017 and unopposed seeks for Judicial Review order of mandamus to compel the City County Secretary of Nairobi County to settle the decree in the sum of the shs 1200,703. 67 as at 31st December 2016 with further interest.
2. The County Government is, under the Government proceedings, like the National Government and as such, no execution can issue against the government. It is for that reason that Judicial Review proceedings are instituted to compel settlement of a decree which is a legal duty of a judgment debtor.
3. I have seen decree of 28th July 2008 issued on 16th September 2008. There has been claims/demands for settlement and the respondent send counsel to this court severally to undertake to settle but todate there has been no settlement of that decree. If mandamus does not issue, the judgment of 28th July 2008 by Angawa J in HCC 1595/2002 shall be a mere paper judgment and the applicant is rendered a mere pious explore in the judicial process. It is for that reason that I find the motion by the applicant for mandamus merited.
4. I grant the Judicial Review order of mandamus as sought in prayer No. 1 of the motion dated 28th February 2017 together with costs of these Judicial Review proceedings. The decree to be settled in the next 45 days and in default the applicant is at liberty to apply.
Dated, signed and delivered in open court at Nairobi this 3rd day of May 2017.
R. E. ABURILI
JUDGE