[2012] KEHC 489 (KLR)
The court found that the ex-parte applicants had duly served the respondent with all necessary documents, including a certified copy of the certificate of order against the Government and a demand letter. The Permanent Secretary, Internal Security, had a statutory duty to satisfy the decree, costs, and interest as...
Source-derived case information.
- Citation
- [2012] KEHC 489 (KLR)
- Parties
- Applicant: Margaret Wanjiku Kinyanjui; Applicant: Penina Nduta Kariuki; Respondent: Permanent Secretary, Internal Security Office of the President
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 366 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Order of Mandamus
- Outcome
- Order of mandamus granted; costs awarded to applicants.
- Judges
- RPV Wendoh
- Legal Topics
- Judicial Review, Mandamus Orders, Government Liability, Enforcement of Judgments
- 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
Margaret Wanjiku Kinyanjui
Applicant
Penina Nduta Kariuki
Applicant
Permanent Secretary, Internal Security Office of the President
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Order of Mandamus
Legal Issues
- 1 Whether the respondent has a statutory duty to satisfy the decree, costs and interest in Nakuru CMCC No. 705 of 2001.
- 2 Whether the ex-parte applicants served the respondent with all necessary documents to enable settlement of the decretal sum.
- 3 Whether an order of mandamus should issue to compel the respondent to perform its statutory duty.
Ratio Decidendi
The court found that the ex-parte applicants had duly served the respondent with all necessary documents, including a certified copy of the certificate of order against the Government and a demand letter. The Permanent Secretary, Internal Security, had a statutory duty to satisfy the decree, costs, and interest as ordered in Nakuru CMCC No. 705 of 2001. The respondent's failure to act since 2004 constituted neglect of statutory duty. Therefore, the court granted an order of mandamus compelling the respondent to satisfy the decree, costs, and interest, and awarded costs to the ex-parte applicants.
Court Disposition
Order of mandamus granted; costs awarded to applicants.
Orders
- An order of mandamus is issued compelling the Permanent Secretary, Internal Security in the Office of the President to satisfy the decree, costs and interest in Nakuru CMCC No. 705 of 2001.
- Costs of this application are awarded to the ex-parte applicants.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
Miscellaneous Civil Application 366 of 2006 [if gte mso 9]><xml>
800x600
</xml><![endif][if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
MicrosoftInternetExplorer4
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; font-size:10. 0pt;"Times New Roman","serif";} </style> <![endif]
REPUBLIC …......................................................................... APPLICANT
VERSUS
THE PERMANENT SECRETARY
INTERNAL SECURITY OFFICE OF THE PRESIDENT …........... RESPONDENT
EXPARTE
MARGARET WANJIKU KINYANJUI AND
PENINA NDUTA KARIUKI
RULING
By the Notice of Motion dated 31/3/2007, Margaret Wanjiku Kinyanjui and Penina Nduta Kariuki (hereinafter referred to as the ex-parte applicants) sought the following order:-
1. That an order of mandamus do issue compelling the Permanent Secretary, Internal Security in the Office of the President to satisfy the decree, costs and interest in Nakuru CMCC No. 705 of 2001
2. Costs be borne by the respondent.
The motion was premised upon the grounds on the face of it, the statement of facts dated 30/6/2006, the verifying affidavits sworn by Peninnah Nduta Kariuki and Margaret Wanjiru Kinyanjui on 2. 6.2006 and skeleton arguments dated 11/8/2010.
According to the affidavits, judgment was entered against the respondent on 23/7/2002. Despite having been served with all the relevant documents, the respondent has not made any steps towards settling the decretal sum thus necessitating these proceedings.
The application was opposed. Ms. Khatambi for the Attorney General submitted that the exparte applicants had not served the respondent with the necessary documents including the judgment and certificate of costs to enable it settle the decretal sum.
In reply, Mr. Mutonyi, counsel for the exparte applicants stated that all documents were served upon the respondent and were annexed to the application.
I have considered the affidavits, skeleton arguments filed by the exparte applicants and submissions by both counsel. From perusing the file, the exparte applicants exhibited a letter dated 19/5/2004 (MWK7) addressed to the Attorney General by the applicant’s counsel, forwarding a certified copy of the certificate of order against the Government. In the letter, a demand was made for the decretal sum. It is therefore clear that the same was indeed served upon the respondent.
An order of mandamus lies to command a public body (or officer) to perform its statutory duty if it has refused or neglected to do so. In the instant case, the permanent secretary, who has a statutory duty to settle this claim, has neglected/refused to settle the claim herein since 2004.
For the foregoing reason, I hereby grant the order of mandamus sought herein compelling the Permanent Secretary, Internal Security in the Office of the President to satisfy the decree, costs and interest in Nakuru CMCC No. 705 of 2001. I also award costs to the exparte applicants as prayed.
DATED and DELIVERED this 22nd day of November, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
Ms Koima holding brief for Mr. Mutunyi forExparte Applicants
Mr. Marete holding brief for Ms Khatambi for theRespondent
Kennedy – Court Clerk