[2024] KEHC 11151 (KLR)
The court found that the applicant had not complied with the mandatory statutory requirements under Section 21 of the Government Proceedings Act, which require the issuance and service of a decree and certificate of order against the government before seeking judicial review orders of mandamus. The applicant had...
Source-derived case information.
- Citation
- [2024] KEHC 11151 (KLR)
- Parties
- Applicant: Republic; Respondent: Kisumu County Government; Respondent: The County Secretary Kisumu County Government; Respondent: The County Executive Committee Member Finance and Planning Kisumu County Government; Respondent: The County Chief Officer, Finance Kisumu County Government; Applicant: Trishul Chohan t/a Auto Extreme
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E334 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Certification of Urgency and Preliminary Compliance
- Outcome
- application struck out as premature
- Judges
- RE Aburili
- Legal Topics
- Judicial Review, Mandamus, Government Proceedings, Decree Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Kisumu County Government
Respondent
The County Secretary Kisumu County Government
Respondent
The County Executive Committee Member Finance and Planning Kisumu County Government
Respondent
The County Chief Officer, Finance Kisumu County Government
Respondent
Trishul Chohan t/a Auto Extreme
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Certification of Urgency and Preliminary Compliance
Legal Issues
- 1 Whether the application for leave to apply for judicial review orders of mandamus is urgent.
- 2 Whether the applicant has complied with Section 21 of the Government Proceedings Act before seeking mandamus against the government.
- 3 Whether the absence of a decree and certificate of order against the government renders the application premature.
Ratio Decidendi
The court found that the applicant had not complied with the mandatory statutory requirements under Section 21 of the Government Proceedings Act, which require the issuance and service of a decree and certificate of order against the government before seeking judicial review orders of mandamus. The applicant had only annexed a copy of the judgment and certificate of costs, but not the decree or certificate of order against the government. As such, the application was premature and could not be entertained. The court struck out the application, emphasizing that compliance with statutory prerequisites is a condition precedent to seeking enforcement against government entities.
Court Disposition
application struck out as premature
Orders
- The application dated 19th September 2024 is struck out.
- The applicant may file a fresh application upon complying with Section 21 of the Government Proceedings Act.
Full Case Text
Judgment text and source record
34 paragraphs
Republic v Kisumu County Government & 3 others; Trishul Chohan t/a Auto Extreme (Exparte) (Miscellaneous Civil Application E334 of 2024) [2024] KEHC 11151 (KLR) (23 September 2024) (Ruling)
Neutral citation: [2024] KEHC 11151 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Civil Application E334 of 2024
RE Aburili, J
September 23, 2024
IN THE MATTER OF AN APPLICATION BY TRISHUL CHOHAN T/A AUTO EXTREME FOR A JUDICIAL REVIEW ORDER OF MANDAMUS AND IN THEMATTER OF THE COUNTY GOVERNMENT ACT NO. 3 OF 2012 OF THE LAWS OF KENYA AND IN THE MATTER OF KISUMU HIGH COURT CIVIL SUIT NO 13 OF 2019
Between
Republic
Applicant
and
Kisumu County Government
1st Respondent
The County Secretary Kisumu County Government
2nd Respondent
The County Executive Committee Member Finance and Planning Kisumu County Government
3rd Respondent
The County Chief Officer, Finance Kisumu County Government
4th Respondent
and
Trishul Chohan t/a Auto Extreme
Exparte
Ruling
1. I have perused the application dated 19th September 2024 under Certificate of Urgency. I do not find any urgency involved. I decline to certify the application as urgent.
2. I however observe that the Applicant seeks leave of this court to apply for Judicial Review Orders of Mandamus to compel the 1st Respondent to settle decree in Kisumu HCCC No. 13 of 2019, dated 17th November 2021 and certificate of order of costs dated 4th June 2024.
3. I have perused copy of Judgment and Certificate of Costs annexed. There is no evidence of the decree and or certificate of order against the Government having been issued and served upon the Respondents as stipulated in Section 21 of the Government Proceedings Act as read with Order 29 Rule 3 of the Civil Procedure Rules. See the case of Five Star Agencies Ltdvs National Land Commission & Another CA No. E390 of 2023 (Court of Appeal) which restated the law and held that before filing Judicial Review application seeking satisfaction of decree against the Government, the party must obtain a certificate of order and certificate for costs against the Government and issuing a 21 days’ notice upon the Government.
4. In this case, the applicant has only annexed copy of Judgment and certificate of costs as taxed. There is no decree and certificate of order against the Government.
5. Accordingly, I find that the application dated 19th September 2024 is premature. It is hereby struck out.
6. The Applicant may file a fresh application upon complying with the requirements under Section 21 of the Government Proceedings Act.
7. I make no orders as to costs.
8. This file is closed.
9. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 23RDDAY OF SEPTEMBER, 2024R. E. ABURILIJUDGE