[2017] KEHC 944 (KLR)
The court held that the respondents are under a statutory duty to pay the judgment debt owed to the ex-parte applicant, as mandated by section 21 of the Government Proceedings Act. The objections raised by the respondents, including alleged anomalies in the applicant's claim and the status of assets and liabilities,...
Source-derived case information.
- Citation
- [2017] KEHC 944 (KLR)
- Parties
- Applicant: Ken Pundo & Company Advocates; Respondent: The Kisumu County Secretary, Kisumu County Government; Respondent: The County Executive Committee Member, Finance & Planning, Kisumu County Government; Respondent: The County Chief Officer, Finance, Kisumu County Government
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 54 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Order of Mandamus
- Outcome
- Order of mandamus adjourned for sixty days; respondents given time to act before order becomes absolute.
- Judges
- DAS Majanja
- Legal Topics
- Judicial Review, Mandamus, Government Liability, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ken Pundo & Company Advocates
Applicant
The Kisumu County Secretary, Kisumu County Government
Respondent
The County Executive Committee Member, Finance & Planning, Kisumu County Government
Respondent
The County Chief Officer, Finance, Kisumu County Government
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Order of Mandamus
Legal Issues
- 1 Whether an order of mandamus should issue to compel the respondents to pay the judgment debt owed to the ex-parte applicant.
- 2 Whether the respondents are under a statutory duty to satisfy the judgment debt in light of section 21 of the Government Proceedings Act.
- 3 Whether the objections raised by the respondents provide a legal basis to refuse payment of the judgment debt.
Ratio Decidendi
The court held that the respondents are under a statutory duty to pay the judgment debt owed to the ex-parte applicant, as mandated by section 21 of the Government Proceedings Act. The objections raised by the respondents, including alleged anomalies in the applicant's claim and the status of assets and liabilities, were not valid grounds to refuse payment, as these should have been addressed in proceedings to set aside or vary the consent judgment. Judicial review is not the forum to revisit the merits of the consent judgment. However, recognizing the discretionary nature of judicial review remedies and the inherited liabilities of the County Government, the court granted the respondents...
Court Disposition
Order of mandamus adjourned for sixty days; respondents given time to act before order becomes absolute.
Orders
- The respondents are granted sixty (60) days to take any action they deem necessary before the order of mandamus becomes absolute.
- The order absolute is adjourned.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISUMU
MISC. APPLICATION NO. 54 OF 2016
BETWEEN
REPUBLIC..................................................................................................APPLICANT
AND
THE KISUMU COUNTY SECRETARY
KISUMU COUNTY GOVERNMENT...........................................1ST RESPONDENT
THE COUNTY EXECUTIVE COMMITTEE MEMBER,FINANCE & PLANNING
KISUMU COUNTY GOVERNMENT............................................2ND RESPONDENT
THE COUNTY CHIEF OFFICER, FINANCE
KISUMU COUNTY GOVERNMENT............................................3RD RESPONDENT
EX-PARTE
KEN PUNDO & COMPANY ADVOCATES
RULING
1. The ex- parte' applicant, Ken Pundo & Company Advocates, filed the Notice of Motion dated 27th April 2017 seeking an order of mandamusto compel the respondents to jointly and or singularly comply with the orders of this Court in Kisumu High Court Misc Application No. 104 of 2015 and consolidated with Kisumu High Court Misc. Applications 105 -195 of 2015 to pay fees to the ex-parte applicant.
2. The ex-parte applicant has judgment against the County Government that was obtained by consent. When recording the consents, the respondents were aware of the repercussions of such a consent. What is before the court is not a claim against the County Government but a judgment debt and there is no other legal remedy open to the ex-parte applicant as section 21 of the Government Proceedings Act (Chapter 40 of the Laws of Kenya) prohibits execute by way of attachment and sale against the County Government. The respondents are under a statutory duty to pay debts owed by the County Government once judgment has been passed.
3. The issues raised by in opposition by the respondents is that the ex-parte applicant wrongfully retained rates it had been instructed to collect on its behalf, that the Transitional Authority was yet to prepare and validate all existing assets and liabilities of the defunct Kisumu Municipal Council and prepare a status report which would form a basis for payment of the claims and that the ex-parte applicant’s claim had several anomalies. The respondents argued that in view of the amount of money in question, about Kshs. 150 million, it was in public interest not to compel them to honour the judgment debt.
4. It is a well-established principle of law that a judicial review is not a substitute for an appellate court (see Kamani v Kenya Anti-Corruption Commission [2007] 1 EA 112). It is clear that the issues raised by the respondents are matters which ought to have been raised in appropriate proceedings to set aside or vary the consent judgments. Short of that, this court cannot intervene, at least in these proceedings.
5. In light of what I have stated the result of the application must be obvious. However, an order of judicial review is discretionary and given the fact that the liabilities are inherited by the County Government, I give the respondent sixty (60) days to take whatever action it deems before the hammer falls. The order absolute is therefore adjourned.
DATED and DELIVERED at KISUMU this 21st day of December 2017.
D. S. MAJANJA
JUDGE
Mr Ogejo instructed by Ogejo, Olendo and Company Advocates for the ex-parte applicant.
Mr Achura instructed Amondi and Company Advocates for the respondents.