[2023] KEHC 25626 (KLR)
The court found that since there was a pending application in the trial court to set aside the ex parte judgment, and the issue of non-service of the suit in the trial court was not addressed, it would be premature and unwise to conclusively grant the orders sought by the ex parte applicant. The court held that the...
Source-derived case information.
- Citation
- [2023] KEHC 25626 (KLR)
- Parties
- Applicant: Republic; Respondent: Homa Bay County Assembly Service Board; Respondent: Homa Bay County Assembly; Respondent: Clerk, County Assembly of Homa Bay; Applicant: Pride Kings Services Limited
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Miscellaneous Application E002 of 2022
- Procedural Posture
- Judicial Review Miscellaneous Application / Ruling on Amended Notice of Motion for Mandamus
- Outcome
- Application for mandamus declined; each party to bear its own costs.
- Judges
- KW Kiarie
- Legal Topics
- Judicial Review, Mandamus Orders, Enforcement of Judgments, Public Duty to Pay Debts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Homa Bay County Assembly Service Board
Respondent
Homa Bay County Assembly
Respondent
Clerk, County Assembly of Homa Bay
Respondent
Pride Kings Services Limited
Applicant
Procedural Posture
Judicial Review Miscellaneous Application / Ruling on Amended Notice of Motion for Mandamus
Legal Issues
- 1 Whether an order of mandamus should issue to compel the respondents to pay the decretal sum and taxed costs to the ex parte applicant.
- 2 Whether the respondents were properly served with the judgment, decree, and certificate of order against them.
- 3 Whether the existence of a pending application to set aside the ex parte judgment in the trial court precludes the grant of mandamus.
Ratio Decidendi
The court found that since there was a pending application in the trial court to set aside the ex parte judgment, and the issue of non-service of the suit in the trial court was not addressed, it would be premature and unwise to conclusively grant the orders sought by the ex parte applicant. The court held that the existence of the pending application and unresolved service issues precluded the grant of mandamus at this stage. The court therefore declined to issue the order of mandamus and directed that each party bear its own costs.
Court Disposition
Application for mandamus declined; each party to bear its 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; Pride Kings Services Limited (Exparte Applicant) (Judicial Review Miscellaneous Application E002 of 2022) [2023] KEHC 25626 (KLR) (21 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25626 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Judicial Review Miscellaneous Application E002 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
Clerk, County Assembly of Homa Bay
3rd Respondent
and
Pride Kings Services Limited
Exparte Applicant
Ruling
1. Pride Kings Services Limited, 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 mandamus to issue against the respondents compelling them to pay the ex parte applicant the sum of kshs.4,785,000/- 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. E026 of 2022 between Pride Kings Services Limited 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. E026 of 2022 between Pride Kings Services Limited 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.4,785,000/- 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 the 22nd day of March 2022 and the same was taxed on the 12th day of 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 applicants have made several reminders to the respondents to settle the amounts but the reminders have illicit 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.That they have never been served with any court judgment and/or decree, pleading, or notices emanating from these proceedings.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.That the respondents have since filed an application under certificate at the trial magistrate’s court to the ex parte judgment set aside and the matter herein be heard and determined on merit.d.That it will be highly prejudiced and against the tenets of the Constitution for the ex parte applicant’s application to be allowed as the respondent’s 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