[2009] KEHC 3609 (KLR)
The court found that the application for mandamus was unopposed and that the respondent, through State Counsel, had acknowledged the debt and indicated efforts to settle it. There was no legal or factual basis presented to oppose the application. The applicant had a clear legal right to payment of the decretal sum...
Source-derived case information.
- Citation
- [2009] KEHC 3609 (KLR)
- Parties
- Applicant: G.H. Tanna & Sons Limited; Respondent: Permanent Secretary, Ministry of Foreign Affairs and International Cooperation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1186 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Order of Mandamus
- Outcome
- Application allowed. Order of mandamus granted.
- Legal Topics
- Judicial Review, Mandamus Orders, Government Liability, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
G.H. Tanna & Sons Limited
Applicant
Permanent Secretary, Ministry of Foreign Affairs and International Cooperation
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Order of Mandamus
Legal Issues
- 1 Whether an order of mandamus should issue to compel the Permanent Secretary to pay the decretal sum awarded in HCCC No. 647 of 2000.
- 2 Whether the applicant is entitled to costs of the application.
Ratio Decidendi
The court found that the application for mandamus was unopposed and that the respondent, through State Counsel, had acknowledged the debt and indicated efforts to settle it. There was no legal or factual basis presented to oppose the application. The applicant had a clear legal right to payment of the decretal sum as awarded in HCCC No. 647 of 2000, and the Permanent Secretary, as the Accounting Officer, had a statutory duty to satisfy the decree. The court held that mandamus was the appropriate remedy to compel performance of this public duty, and accordingly granted the order as prayed, including interest and costs.
Court Disposition
Application allowed. Order of mandamus granted.
Orders
- An order of mandamus is issued and directed to the Permanent Secretary, Ministry of Foreign Affairs and International Cooperation, to compel payment of the decretal amount awarded in HCCC No. 647/2000, being Kshs.5,961,928 as at 24/09/2007 plus interest at 23% per annum until payment in full.
- The costs of and incidental to this application are awarded to the applicant.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Civil Appli 1186 of 2007
IN THE MATTER OF AN APPLICATION BY M/S G.H. TANNA & SONS LIMITED FOR JUDICIAL
REVIEW BY WAY OF AN ORDER OF MANDAMUS DIRECTED TO THE PERMANENT SECRETARY
MINISTRY OF FOREIGN AFFAIRS AND INTERNATIONAL COOPERATION
AND
IN THE MATTER OF HCCC NOL 647 OF 2000 - G.H. TANNA & SONS LIMITED -VS- THE ATTORNEY GENERAL
AND
IN THE MATTER OF THE GOVERNMENT PROCEEDINGS ACT, CHAPTER 40 OF THE LAWS OF KENYA
REPUBLIC ……………................……………………….………….……. APPLICANT
V E R S U S
THE PERMANENT SECRETARY, MINISTRY OF FOREIGN
AFFAIRS AND INTERNATIONAL CO-OPERATION……………… RESPONDENT
EX-PARTE
G.H. TANNA & SONS LIMITED
R U L I N G
This is a Notice of Motion dated 18th December, 2007 filed by M/s Adera & Company advocates for the applicant, named as G.H. TANNA & SONS LIMITED. The application was said to be brought under section 8 and 9 of the Law Reform Act (Cap 26 of the Laws of Kenya), Order 53 Rules 3 and 4 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (Cap. 21 of the Laws of Kenya).
The application seeks for an order of mandamus to issue against the Permanent Secretary in the Ministry of Foreign Affairs and International Cooperation to compel him to pay the decretal amount awarded in HCC No. 647 of 2000 and interest. It also seeks for orders of costs.
The main ground of the application is that the said Permanent Secretary being the Accounting Officer had failed or neglected to pay the decretal amount of Kshs.5,961,928/= to the applicant in satisfaction of a decree given by the court on 13th October, 2000 in HCCC 647 of 2000 – G.H. TANNA & SONS LTD. -VS- THE ATTORNEY-GENERAL.
The application was filed after leave was granted by Hon. Justice Wendo, as shown in the pleadings filed, and the court record. It was served on the Attorney-General. State Counsel in the names of Mr. Sitima and Mr. Gikera appeared for the respondents on 6th June, 2008, and 13th October, 2008 respectively. On both occasions, the State Counsel indicated that they were pursuing payments from the Permanent Secretary. The Attorney-General did not file any documents in opposition to the application.
After a number of mentions, on 13/10/2008, in the presence of Mr. Gikera for the respondents. I fixed a hearing date. However, on the hearing date, no State Counsel appeared in court. The application was therefore heard in their absence and remained unopposed.
Because the application was unopposed, and the State Counsel had indicated that they were pursuing payment, there can be no reason for me to decline allowing the application. The claim of the applicant was not only unopposed, but appears infact to have been accepted by the state counsel, except for the settlement which has not been forthcoming.
For the above reasons, I allow the application and grant the orders prayed as follows-
1. An order ofMANDAMUSbe and is herebyissued and directed to the Respondent/Permanent Secretary in the Ministry of Foreign Affairs and International Cooperation to compel him to make payment of the decretal amount awarded inHCCC No. 647/2000 G.H. TANNA & SONS LIMITED -VS- THE HON. ATTORNEY-GFENERALwhich stood at Kshs.5,961,928/= as at 24/09/2007 plus further interest at 23% pa thereon till payment in full.
2. The costs of relating and incidental to, this application are awarded to the applicant.
It is so ordered.
Dated and delivered at Nairobi this 5th March, 2009.
GEORGE DULU
JUDGE.
In the presence of-
Mr. Otieno for applicant
N/A for Attorney-General
Mr. Mwangi Court Clerk.