[2017] KEHC 4206 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CONSTITUTION AND JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW NO. 67 OF 2016

IN THE MATTER OF: AN APPLICATION OF EVANSON GIDRAPH KAMAU AND BERTHA WANJIKU KAMAU FOR JUDICAL REVIEW ORDERS OF MANDAMUS

AND

IN THE MATTER OF: AN ORDER UNDER ORDER 53 RULES 1, 2 AND 3 OF THE CIVIL PROCEDURE RULES 2010 AND SECTION 3A OF THE CIVIL PROCEDURE RULES

BETWEEN

REPUBLIC...........................................................................................................APPLICANT

DR. ENG. KARANJA KIBICHO, PRINCIPAL SECRETARY OF THE MINISTRY OF

INTERIOR AND COORDINATION OF NATIONAL GOVERNMENT..........RESPONDENT

AND

EVANSON GIDRAPH KAMAU......................................................EX PARTE APPLICANT

RULING

The Application

1. The Notice of Motion application before the court is dated 1st September, 2016 and is filed by the ex parte Applicant pursuant to Order 53, rules 1, 2 and 3 of the Civil Procedure Rules and Section 1, 1B and 3A of the Civil Procedure Act. The ex parte Applicant prays for the following orders:

(a) That an order of mandamus do issue to command the Respondent to satisfy the decree issued by the Mombasa High court in Miscellaneous Application No. 40 of 2000 between Evanson Gidraph Kamau Waitiki and Another versus The Attorney-General who is representing the Ministry of Interior & Coordination of National Government wherein the costs awarded is Kshs. 58,424,174/= together with interest at court rate per annum from 27th November, 2015 until the date of full settlement.

(b) That the costs of this application be provided for.

2. The application is premised on the grounds that the Applicant is the decree holder in Mombasa High Court Miscellaneous Application No. 40 of 2000, while the Respondent is the Ministry of Interior & Coordination of National Government represented by the Attorney-General. The Applicant was awarded costs amounting to Kshs. 58,424,174. 00/= (Kenya Shillings Fifty Eight Million Four Hundred Twenty Four Thousand One Hundred Seventy Four). The Applicant was issued with a certificate of costs and a certificate of order against the Government, and he on several occasions demanded the said payment from the Respondent without any success. The Applicant states that the Respondent has no justification why he cannot settle the said decree in full, and that in Law, the Respondent is under a legal duty to satisfy the decree issued by the court. As the Respondent has failed to do so, he should be directed to discharge his legal duties through an order of mandamus. The Applicant states that Articles 10 and 47 of the Constitution of Kenya, 2010 requires officers, such as the Respondent, to act in an accountable and transparent manner so as to uphold the rule of law, transparency and good governance, and that the settlement of decree by the court would enhance the said values.

3. The application is also supported by Verifying Affidavit of Gikandi Ngibuini sworn on 25th July, 2016. The affidavit expounds on the above grounds. Mr. Gikandi and Dr. Kamau Kuria jointly act for the Applicants herein and that the Applicant was awarded costs in the Ruling of Mombasa High court Miscellaneous No. 40 of 2000. Mr. Gikandi annexed copies of some of the Rulings delivered in the said matter including the Ruling on the issue of taxation of costs. as annexture “GN-1”. The said costs were eventually taxed and stood at Kshs. 58, 424,174/= on 27th November, 2015. Copies of the Certificate of Costs and Certificate of Order against the Government was annexed and marked “GN-2”. The deponent states that the Applicant has on several occasions unsuccessfully demanded from the Respondent that he pays up the said costs. Copies of some letters to that effect are annexed marked “GN-3”. The award continues to attract interest, and the earlier it is settled the better for all concerned so as to avoid the unwarranted escalation of interest. Mr. Gikandi depones that it will be much more difficult to recover the said costs when the amount becomes much larger because of such escalation. The Respondent has not given any reason why he cannot pay the said decree, and he should therefore be directed through an order of mandamus to execute his legal duty of satisfying the said decree of the court.

The Response

5. The application is not opposed by Mr. Guyo Wachira for the Respondent. On 13th April, 2017 the parties entered into a consent as follows:

(a) By consent of the parties the decretal sum shall be paid within 45 days from today.

(b) Each party shall be at liberty to apply.

(c) This matter be mentioned on 31st May, 2017.

6. On 31st May, 2017 parties came to court and it was established that while the Respondent had given the authority for payment to be effected, the National treasury was yet to effect the payment and it was not known when that will take place.

7. On the basis of that uncertainty Mr. Gikandi, under prayer No. 2 of the above consent on liberty to apply, applied to have the motion heard. Upon the court agreeing to hear the motion Mr. Gikandi submitted that he entirely relied on the application and prayed for the grant of the orders.

8. Mr. Wachira on his part submitted that although the Respondent had neither filed a response nor submissions, they opposed the application on the grounds that:

The orders cannot be issued against the Respondent in view of Section 12 and 16 of Government Proceedings Act.

The orders sought are injunctive in nature.

In any event if the orders are granted the same should be stayed for at least sixty (60) days since the Respondent is making arrangement for payments of the sums claims.

Determination

9. I have carefully considered the Notice of Motion and the prayers by the ex parte Applicants seeking an order of mandamus to compel the Respondent Dr. Eng. Karanja Kibicho, Principal Secretary of the Ministry of Interior and Co-ordination and National Government, to pay him Kshs. 58,424,174/= together with interest at court rate from 27th November, 2011 to 2015 until date of full settlement and costs. That application is supported by a statement dated 25th July, 2016 and a verifying affidavit sworn on the same day by his advocates, Mr. Gikandi Ngibuini. To the verifying affidavit are annexed the proceedings in Judicial Review Application No. 40 of 2000 and various Rulings, a Certificate of Costs dated 18th January, 2016, a Certificate of Order against the Government and demand letters dated 30th June, 2016 and 27th January, 2016. The Respondent upon whom the application has been served has not filed any response. He must, therefore, be taken to accept the facts deponed to by Mr. Gikandi in his affidavit sworn on 28th July, 2016. It is settled law that if an Applicant provides evidence taking the form of an affidavit which is not controverted, the court will take evidence as admitted. See Kariuki Gathitu vs. Attorney-General [2013] eKLR. The ex parte Applicant therefore, has proved on a balance of probabilities that indeed, the Respondent owes the money described in the order and has not paid the same despite the two written demands made. The demand letters are at pages 45-47 of the application. The amount, whose payment is sought, takes the form of costs granted and taxed in Judicial Review Application No. 40 of 2000. The Certificate of Costs appears at pages 41-42k, the Certificate of Order against the Government appears at page 44 of the application. This reads as follows:

“By decree of this court dated 18th January, 2016, it was ordered that the Ministry of Internal Security do pay the Applicant the sum of Kenya Shillings Fifty Eight Million four Hundred Twenty Four Thousand One Hundred Seventy Four only (Kshs. 58,424,174/=). I accordingly hereby certify that the amount payable to the Applicant by the Ministry of Internal Security in pursuance of the said decree is Kenya Shillings Fifty Eight Million Four Hundred Twenty Four Thousand One Hundred Seventy Four only (Kshs. 58,424,174/=).”

10. That certificate is issued under Section 21 of the Government Proceedings Act, Cap 40 of the Laws of Kenya. Section 21(3) of the Government Proceedings Act provides as follows:

“(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:

Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.

11. In this application, the order of mandamus is sought to enforce the government’s duty to pay under the said Section 21(3) of the Government Proceedings Act and also the common law duty to satisfy a decree. The order of mandamus is issued to enforce either a common law or statutory duty imposed on a public officer. The authority for this preposition is G. P. Shah vs. Attorney-General and Another, Court of Appeal at Nairobi, Civil Appeal No. 24 of 1995. See page 17 of the Judgment where the following passage of the law appears.

“Mandamus is neither a writ of course nor a writ of right but it will be granted if the duty affects the rights of an individual provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory duty or a legal duty to do something or not to do something, the duty itself being of an imperative nature.

In the dictionary of English law, it is said that mandamus is used to compel public officers to perform duties imposed on them by common law or by statute.”

12. This remedy of mandamus is used against the governments in commonwealth countries and it was used in Privy Council appeal No. 29 of 2000, Jennifer Gairy vs. Attorney-General of Grenada. In that case, the government paid a part of compensation payable to the Applicant. An order of mandamus was sought to compel payment of the balance. The High Court and Court of Appeal denied the relief but the Privy Council allowed it. In Miscellaneous Civil application No. 431 of 2014. Justice Odunga issued an order of mandamus against Respondents who were the Attorney General and Principal Secretary of Ministry of Interior who had not satisfied a decree.

13. I am satisfied that the application is merited. The same is therefore allowed as prayed with costs to the ex parte Applicant.

Dated, Signed and Delivered in Mombasa this 20th day of July, 2017.

E. K. O. OGOLA

JUDGE

In the presence of:

Mr. Gikandi for Ex Parte Applicant

Mr. Guyo Wachira for Respondent

Mr. Kaunda Court Assistant