[2023] KEHC 25627 (KLR)
The court declined to grant the orders of mandamus sought by the ex parte applicant because there was a pending application in the trial court to set aside the ex parte judgment, and the issue of service of the suit was not addressed. The court held that it would be unwise to conclusively address the orders...
Source-derived case information.
- Citation
- [2023] KEHC 25627 (KLR)
- Parties
- Applicant: Republic; Respondent: Homa Bay County Assembly Service Board; Respondent: Homa Bay County Assembly; Respondent: The Clerk, County Assembly Of Homa Bay; Applicant: Japat General Services
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application E011 of 2022
- Procedural Posture
- Judicial Review Miscellaneous Application / Ruling on Amended Notice of Motion for Mandamus
- Outcome
- Application for mandamus declined; parties to bear own costs.
- Judges
- KW Kiarie
- Legal Topics
- Judicial Review, Mandamus Orders, Enforcement of Judgments, Public Duty to Pay Judgment Debt
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Homa Bay County Assembly Service Board
Respondent
Homa Bay County Assembly
Respondent
The Clerk, County Assembly Of Homa Bay
Respondent
Japat General Services
Applicant
Procedural Posture
Judicial Review Miscellaneous Application / Ruling on Amended Notice of Motion for Mandamus
Legal Issues
- 1 Whether the respondents are under a legal duty to pay the decretal sum and taxed costs to the ex parte applicant as ordered in the lower court judgment.
- 2 Whether the respondents were properly served with the suit and decree in the trial court.
- 3 Whether the existence of a pending application to set aside the ex parte judgment in the trial court precludes the grant of mandamus at this stage.
Ratio Decidendi
The court declined to grant the orders of mandamus sought by the ex parte applicant because there was a pending application in the trial court to set aside the ex parte judgment, and the issue of service of the suit was not addressed. The court held that it would be unwise to conclusively address the orders requested while the application to set aside the judgment was pending. The applicant was advised that if the application in the trial court is decided in their favor, they may move the court for enforcement. Each party was ordered to bear its own costs.
Court Disposition
Application for mandamus declined; parties to bear own costs.
Orders
- The application for an order of mandamus is declined.
- Each party to meet its own costs.
Full Case Text
Judgment text and source record
27 paragraphs
Republic v Homa Bay County Assembly Service Board & 2 others; Japat General Services (Exparte Applicant) (Judicial Review Miscellaneous Application E011 of 2022) [2023] KEHC 25627 (KLR) (21 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25627 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Judicial Review Miscellaneous Application E011 of 2022
KW Kiarie, J
November 21, 2023
Between
Republic
Applicant
and
Homa Bay County Assembly Service Board
1st Respondent
Homa Bay County Assembly
2nd Respondent
The Clerk, County Assembly Of Homa Bay
3rd Respondent
and
Japat General Services
Exparte Applicant
Ruling
1. Japat General Services the ex parte applicant, moved the court by way of an amended Notice of Motion dated the 7th day of February 2023 under Order 53 Rules 3 & 4 of the Civil Procedure Rules, for the following orders:a.An order of judicial review in the nature of mandamus to issue against the respondents compelling them to pay the ex parte Applicant the sum of Kshs 4,200,000/- being the decretal amount together with interest thereon at 14% per annum until payment in full and Kshs 198,731. 25/- being the certified costs in Homabay CMCC No E027 of 2022 between Japat General Services vs Homabay County Assembly & another.b.The costs of this application be provided for.
2. The application was premised on the following grounds:a.The ex-parte applicant brought a breach of contract suit against the respondents herein on the 18th day of February 2022 in Homabay CMCC No E027 of 2022 between Japat General Services vs Homabay County Assembly & another.b.Judgment was entered in favour of the ex-parte applicant herein on the 9th day of March 2022 where the respondents were ordered to pay the applicant Kshs 4,200,000/- with costs, and interest on the principal amount at the rate of 14% per annum until payment in full.c.The ex-parte applicant subsequently filed their party-to-party bill of costs dated 22nd March, 2022 and the same was taxed on 12th May 2022 at Kshs 198,731. 25/-.d.The ex parte applicant extracted the decree and subsequently a Certificate of Order against the respondents issued on the 21st day of September, 2022. The two documents were served on the respondents.e.The ex parte applicant has made several reminders to the respondents to settle the amounts but the reminders have elicited no response.f.The ex parte applicant is desperate and apprehensive that the respondents have no intention at all of making this payment.g.The respondents have a constitutional and legal obligation to settle the judgment debt and have a public duty to comply with all orders of the court and failure and/or refusal to pay is a gross abdication of that duty and is injurious to the public interest.h.It is only fair and just that the respondents pay the amount to the ex-parte applicant who feels that they are being denied justice through the delay on the part of the respondents.i.The actions and omissions of the respondents are a violation of the ex-parte applicant’s rights which is enforceable by this court through these proceedings.j.It is in the best interest of justice that the reliefs sought in the instant application be granted.
3. The respondents opposed the application through the clerk of the County Assembly who stated:a.They have never been with any court judgment and/or decree, pleading, or notices emanating from these proceedings either on the date when the proceedings were commenced, or subsequently thereafter.b.That this matter proceeded as an undefended cause and judgment was entered in favour of the plaintiff/respondent on the 4th day of August 2022 in the sum of Kshs 4,785,000/-.c.The respondents have since filed an application under certificate at the trial magistrate’s court to have the ex parte judgment set aside and the matter herein be heard and determined on merit.d.It will be highly prejudiced and against the tenets of the constitution for the ex parte applicant’s application to be allowed as the respondents will be deemed to have been condemned unheard.
4. As the issue of non-service of the suit in the trial court was not addressed, and there is a pending application in the trial court, it would not be wise to conclusively address the orders that the ex parte applicant has requested. If the application is decided in her favor, the ex parte applicant can move the court.
5. Each party to meet its costs.
DELIVERED AND SIGNED AT HOMA BAY THIS 21ST DAY OF NOVEMBER 2023KIARIE WAWERU KIARIEJUDGE