[2012] KEHC 1766 (KLR)
The court held that section 263A(a) of the Local Government Act expressly prohibits execution or attachment against a local authority. The statutory duty imposed on the clerk and treasurer is to pay the judgment debt from the local authority's revenues without delay. If they fail to perform this duty, the...
Source-derived case information.
- Citation
- [2012] KEHC 1766 (KLR)
- Parties
- Applicant: Republic; Respondent: The Deputy Registrar, Busia; Respondent: The Attorney General; Applicant: Jonathan Kerio; Applicant: Sylvance Obondo; Interested Party: Julius Manuari t/a Manuari & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 17 of 2011
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Judges
- AO Muchelule
- Legal Topics
- Judicial Review, Certiorari, Prohibition Orders, Execution of Decrees, Local Authorities Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The Deputy Registrar, Busia
Respondent
The Attorney General
Respondent
Jonathan Kerio
Applicant
Sylvance Obondo
Applicant
Julius Manuari t/a Manuari & Co. Advocates
Interested Party
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether warrants of arrest can be issued against officers of a local authority for non-payment of legal fees awarded by court.
- 2 Whether the proper remedy for enforcement against a local authority is mandamus rather than execution by arrest.
- 3 Whether the Deputy Registrar had jurisdiction to issue warrants of arrest in these circumstances.
Ratio Decidendi
The court held that section 263A(a) of the Local Government Act expressly prohibits execution or attachment against a local authority. The statutory duty imposed on the clerk and treasurer is to pay the judgment debt from the local authority's revenues without delay. If they fail to perform this duty, the appropriate remedy for the judgment creditor is to seek an order of mandamus to compel payment, not to pursue execution by way of arrest. The Deputy Registrar therefore acted without jurisdiction in issuing warrants of arrest against the ex-parte applicants. The court accordingly quashed the warrants by certiorari and prohibited further issuance of such warrants.
Court Disposition
application allowed
Orders
- Warrants of arrest issued against the ex-parte applicants are quashed by order of certiorari.
- The Deputy Registrar is prohibited from issuing any further warrants of arrest in the matter by order of prohibition.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
High Court at Bungoma
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IN THE MATTER OF AN APPLICATION FOR ORDERS OF PROHIBITION AND CERTIORARI
AND
IN THE MATTER OF THE LOCAL GOVERNMENT ACT, THE GOVERNMENT PROCEEDINGS ACT, THE CONSTITUTION OF KENYA 2010, THE INTERNATIONAL TREATIES AND CONVENTION LAWS, THE LAW REFORM ACT AND THE CIVIL PROCEDURE RULES
AND
IN THE MATTER OF THE VARIOUS WARRANTS OF ARREST IN EXECUTION OF THE DECREES ISSUED BY THE DEPUTY REGISRAR IN RESPCT OF MUNICIPAL COUNCIL OF BUSIA
AND
IN THE MATTER OF AN APPLICATION BY JONATHAN KERIO & SYLVANCE OBONDO IN CAPACITY AS THE CLERK AND TREASURER OF THE MUNICIPAL COUNCIL OF BUSIA
BETWEEN
REPUBLIC...............................................................................................APPLICANT
~VERSUS~
THE DEPUTY REGISTRAR, BUSIA...........................................1ST RESPONDENT
THE ATTORNEY GENERAL.......................................................2ND RESPONDENT
AND
JULIUS MANUARI t/a MANUARI & CO. ADVOCATES........INTERESTED PARTY
JUDGMENT
The Interested Party provided legal services to the ex-parte Applicants following which he taxed his bills. When the fees was not paid he obtained warrants to have the ex-parte Applicants arrested in execution. The ex-parte Applicants obtained leave and filed this motion seeking to quash the warrants by order of Certiorariand to stop the execution by Order of Prohibition. The counsel agreed to present their arguments through written submissions which I have considered.
Under section 263 A (a) of the Local Government Act (Cap.265)
“Where any judgment or order has been obtained against a local authority no execution or attachment or process in the nature therefore shall be issued against the local authority …………… but the clerk of the local authority shall without delay cause to be paid out of the revenue of the local authority such amounts as by the judgment or Order be awarded against the local authority to the person entitled thereto.”
It is quite clear that the Interested Party cannot legally seek to have the ex-parte Applicants arrested in execution for not paying his fees. The ex-parte Applicants have a duty imposed on them to cause to be paid out from the revenues of their respective local authorities the fees due and they have to do this without delay. If the duty is not performed the Interested Party should come to court and seek an order of Mandamusto compel the ex-parte Applicants to do that which the Statute requires of them.
It follows that the 1st Respondent had no jurisdiction to issue warrants of arrest against the ex-parte Applicants in the matter. The warrants are hereby called into this court by order of Certiorari and quashed. The 1st Respondent is by order of Prohibitionprohibited from issuing any suchwarrants in the matter. Costs of the motion shall be borne by the Interested Party.
Dated, signed and delivered at Bungoma this 3rd day of October, 2012.
A.O. MUCHELULE
JUDGE