[2021] KEHC 3502 (KLR)
The court held that the ex parte applicant, having obtained judgment and a certificate of costs, is entitled to recover the awarded sums from the respondent. The respondent's argument that payment is subject to the availability of funds is not a valid defence against enforcement of a court decree. The court found...
Source-derived case information.
- Citation
- [2021] KEHC 3502 (KLR)
- Parties
- Applicant: Republic; Applicant: Fanuel Inzira Masano; Respondent: Permanent Secretary, Ministry of Tourism; Interested Party: Attorney General
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 19 of 2019
- Procedural Posture
- Judicial Review / Ruling on Application for Order of Mandamus
- Outcome
- Order of mandamus granted; respondent directed to pay decretal sum, interest, and costs within 60 days; costs of the application awarded to the applicant.
- Legal Topics
- Judicial Review, Mandamus Orders, Public Duty Enforcement, Government Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Fanuel Inzira Masano
Applicant
Permanent Secretary, Ministry of Tourism
Respondent
Attorney General
Interested Party
Procedural Posture
Judicial Review / Ruling on Application for Order of Mandamus
Legal Issues
- 1 Whether an order of mandamus should issue to compel the respondent to pay the decretal sum and costs awarded by the trial court to the ex parte applicant.
- 2 Whether the respondent's failure to pay on grounds of unavailability of funds is a valid defence against enforcement of a court decree.
Ratio Decidendi
The court held that the ex parte applicant, having obtained judgment and a certificate of costs, is entitled to recover the awarded sums from the respondent. The respondent's argument that payment is subject to the availability of funds is not a valid defence against enforcement of a court decree. The court found that continued non-compliance with the decree and certificate of costs is detrimental to the applicant and that the respondent has a public duty to satisfy the judgment. Accordingly, the court issued an order of mandamus compelling the Permanent Secretary, Ministry of Tourism, to pay the decretal amount, interest, and costs within 60 days. The court also awarded costs of the...
Court Disposition
Order of mandamus granted; respondent directed to pay decretal sum, interest, and costs within 60 days; costs of the application awarded to the applicant.
Orders
- An order of mandamus is issued compelling the Permanent Secretary, Ministry of Tourism, to pay the decretal amount, interest, and costs awarded to the ex parte applicant.
- The respondent is commanded to remit payment within 60 days.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
JUDICIAL REVIEW NO. 19 OF 2019
REPUBLIC ...................................................................................APPLICANT
VERSUS
ATTORNEY GENERAL............................................ INTERESTED PARTY
THE PERMANENT SECRETARY
MINISTRY OF TOURISM ...................................................RESPONDENT
FANUEL INZIRA MASANO ...............................EX PARTE APPLICANT
RULING
The application dated 4th December 2019 was brought by way of Judicial Review. It is an application for an Order of Mandamus to compel the Respondent to pay the decretal amount which was awarded by the trial court, to the Exparte Applicant.
1. The Interested Party, (The ATTORNEY GENERAL) acknowledges as follows;
“The order of mandamus is of a most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified, which appertains to his or their office, and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where, although there is an alternative legal remedy, yet the mode of redress is less convenient beneficial and effectual ……”
2. In the case before me, the Exparte Applicant obtained judgment in his favour, in FANUEL INZIRA MISANGO VsGILBERT OMBIJA OMUONDO & THE ATTORNEY GENERAL, NYANDO SPMCCC NO. 184 OF 2013.
3. Judgment was delivered on 14th October 2014, and the Court awarded Damages in the sum of Kshs 936,060/=, together with interest thereon.
4. Thereafter, the court awarded a Certificate of Costs, in the sum of Kshs 162,778/=.
5. Based on the Decree and the Certificate of Costs, the Exparte Applicant became entitled to recover the sums awarded to him.
6. The duty to make payment vests upon the Respondent.
7. When the Respondent failed, for whatever reason, to remit payment to the Exparte Applicant, the latter is seriously prejudiced.
8. Therefore, I find the continued non-compliance with the Decree and the Certificate of Costs is detrimental to the Exparte Applicant.
9. Contrary to the submissions by the Hon. Attorney General, it was not erroneous for the Applicant to seek order of mandamus, to compel the Respondent to remit payment of the sums due.
10. The Respondents say that they are aware of the Judgment which was entered against them, and that they will make payment “subject to the availability of funds.” It would be a mockery of justice if this Court were to tell the Applicant to just continue waiting until such time as the Respondents feel they are ready to make payment.
11. The Applicant has already waited for almost 7 Years! He should not be made to wait any longer. Accordingly, I do hereby issue an order of Mandamus, directed at the Permanent Secretary, Ministry of Tourism, to pay the decretal amount together with interest thereon, and the costs which were awarded to the Exparte Applicant.
12. The said Respondent is hereby commanded, by this order of Mandamus , to remit payment within the next 60 Days.
13. Costs of the application dated 4th December 2019 are awarded to the Exparte Applicant, and shall be met by the Respondent.
DATED, SIGNED AND DELIVERED AT KISUMU
THIS 22ND DAY OF SEPTEMBER 2021
FRED A. OCHIENG
JUDGE