[2018] KEHC 7698 (KLR)
The court found that the ex-parte applicant had fully complied with the requirements of section 21 of the Government Proceedings Act by extracting the decree and certificate of order against the Government. The 1st Respondent had no lawful excuse for failing to satisfy the decree, and no appeal had been preferred...
Source-derived case information.
- Citation
- [2018] KEHC 7698 (KLR)
- Parties
- Applicant: Republic; Respondent: Permanent Secretary Ministry of State for Provincial Administration and Internal Security; Respondent: Honourable Attorney General; Applicant: W A O (Minor suing through his father J A O)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 60 of 2012
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Order of Mandamus granted; costs awarded to applicant.
- Judges
- EM Muriithi, DO Ogembo
- Legal Topics
- Judicial Review, Mandamus, Government Liability, Enforcement of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Permanent Secretary Ministry of State for Provincial Administration and Internal Security
Respondent
Honourable Attorney General
Respondent
W A O (Minor suing through his father J A O)
Applicant
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether an order of Mandamus should issue to compel the 1st Respondent to pay the decretal sum pursuant to a court decree.
- 2 Whether the ex-parte applicant complied with section 21 of the Government Proceedings Act in seeking enforcement against the Government.
Ratio Decidendi
The court found that the ex-parte applicant had fully complied with the requirements of section 21 of the Government Proceedings Act by extracting the decree and certificate of order against the Government. The 1st Respondent had no lawful excuse for failing to satisfy the decree, and no appeal had been preferred against the original judgment. The absence of a Replying Affidavit or substantive opposition from the respondents further supported the applicant's case. Consequently, the court held that an order of Mandamus was warranted to compel the 1st Respondent to perform its statutory duty and pay the decretal sum as ordered in the original suit.
Court Disposition
Order of Mandamus granted; costs awarded to applicant.
Orders
- An order of Mandamus is issued compelling the 1st Respondent to satisfy the decree in Voi RMCCC No. 80 of 1998 as ordered on 17/11/2011.
- The costs of this application and the application for leave to file Judicial Review Proceedings shall be paid by the 1st Respondent to the ex-parte applicant.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA MOMBASA
MISCELLANEOUS APPLICATION NO. 60 OF 2012 (JR)
REPUBLIC.............................................................................APPLICANT
VERSUS
1. THE PERMANENT SECRETARY MINISTRY OF
STATE FOR PROVINCIAL
ADMINISTRATION AND INTERNAL SECURITY.....1ST RESPONDENT
2. THE HONOURABLE ATTORNEY GENERAL......2ND RESPONDENT
EX-PARTE W A O
(Minor Suing Through His Father
J A O)......................EX-PARTE APPLICANT
JUDGMENT
1. The Ex-parte Applicant seeks an order of Mandamus to compel the 1st Respondent to pay the sum of Ksh. 830,567 pursuant to a decree of the court in the Principal Magistrate’s Court Civil Suit No. 80 of 1998 a personal injury suit against the 1st Respondent.
2. A decree of the court dated 17/11/2011 together with a certificate of order against the Government dated 17/11/2011 duly received at the office of the Attorney General on 26/4/2012 together with demand letter by counsel for the applicant are attached in support of the Application.
3. No appeal was preferred against the judgment of the trial court in the personal injury suit aforesaid.
4. The Respondents did not file any Replying Affidavit and counsel for the Respondents indicated that he had not obtained instructions from the 1st respondent despite rejected services.
5. An order of Mandamus is available to compel the performance of statutory duty. Upon the judgment and decree of the said court in Voi RMCCC No. 80 of 1998, the 1st Respondent was under a duty to satisfy the decree upon the compliance with the provisions of section 21 of the Government Proceedings Act with regard to execution of decrees against the Government.
6. The court has noted that the ex-parte applicant has duly complied with the procedure under section 21 of the Government Proceedings Act by extracting the decree and taking out a certificate of order against the Government both dated 17/11/2011. The 1st Respondent has no lawful excuse for failure to pay.
Orders
7. Accordingly, the Court grants an order of Mandamus as prayed by the ex-parte Applicant to compel the 1st respondent to satisfy the decree of the court made in Voi RMCCC No. 80 of 1998 W A O (Minor suing through his father J A O) v. Attorney Generalon 17/11/2011.
8. The costs of this application and the application for leave to file Judicial Review Proceedings shall be paid by the 1st Respondent to the Ex-parte applicant.
……………………………………………
EDWARD M. MURIITHI
JUDGE
DATED AND DELIVERED THIS 13TH DAY OF MARCH, 2018.
E. K OGOLA
JUDGE
Appearances: -
M/S Stephen Oddiaga & Co. Advocates for Applicant
Ms. Namahia, State Counsel for Respondents