[2005] KEHC 105 (KLR)
The court found that the applicants had obtained a decree against the government, served all necessary documents, and that direct execution against the government is not permitted by law. There was no alternative remedy available to the applicants for enforcement of the decree. The court was satisfied that all...
Source-derived case information.
- Citation
- [2005] KEHC 105 (KLR)
- Parties
- Applicant: Republic; Applicant: David Njagi Wambua; Applicant: Kioko Ndonya; Respondent: Permanent Secretary Office of the President
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 174 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Order of Mandamus
- Outcome
- application granted
- 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
David Njagi Wambua
Applicant
Kioko Ndonya
Applicant
Permanent Secretary Office of the President
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Order of Mandamus
Legal Issues
- 1 Whether an order of mandamus can issue to compel a government department to settle a decree obtained against it.
- 2 Whether all statutory and procedural requirements for the grant of mandamus have been satisfied.
- 3 Whether there exists any alternative remedy to the applicants for enforcement of the decree.
Ratio Decidendi
The court found that the applicants had obtained a decree against the government, served all necessary documents, and that direct execution against the government is not permitted by law. There was no alternative remedy available to the applicants for enforcement of the decree. The court was satisfied that all statutory and procedural requirements for the grant of mandamus had been met. The absence of opposition from the respondent further indicated no objection to the relief sought. The court held that it is a public duty for the government to settle decrees lawfully obtained against it, and mandamus is the appropriate remedy to compel such payment when other means are unavailable....
Court Disposition
application granted
Orders
- Order of mandamus issued compelling the Permanent Secretary, Office of the President, to pay KES 147,724 in settlement of the decree in Machakos SRMCC No. 104 of 1995.
- Costs awarded to the applicants.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS
Civ Misc Appli 174 of 2004
REPUBLIC ............................................................................................................................................APPLICANT
THROUGH
1. DAVID NJAGI WAMBUA
2. KIOKO NDONYA.........................................................................................................EXPARTE APPLICANT
VERSUS
PERMANENT SECRETARY OFFICE OF THE PRESIDENT................................................RESPONDENT
R U L I N G
This application is brought by the Ex Parte applicants through the Republic. They come under Order 53 and seek for the Judicial Order of Mandamus directed against the Permanent Secretary, Office of the President, to direct and compel the said Permanent Secretary, to pay a sum of Kenya shillings One Hundred and Forty Seven Thousand Seven Hundred and Twenty Four (147,724) in settlement of a decree due to be settled under Machakos Senior Resident Magistrate’s Court Civil Case No. 104 of 1995. The Ex Parte applicants in support of the application deponed that after the decree was obtained, they have served all the relevant and necessary documents required to be served and have requested the judgement debtor to settle the decree but that the judgement debtor has refused or failed to settle, although it is the duty of the judgement to settle the claim. As a result, the decree holders claim that there is no other manner of obtaining the settlement of the claim except by obtaining the superior order of mandamus.
I have considered the arguments from the Ex Parte applicant. This application was not opposed in any way although the applicant stated that he served the application upon the decree-holder. That would indicate to the court that the Respondent was not averse to the relief sought being granted. Nor have I any doubt in my mind that a mandamus can issue against a government department or Ministry to compel it to settle a decree obtained against it where it has become a public duty upon it to settle. In Shah vs. Attorney General (No.3) [1970] E.A 543, the Government failed to settle a decree passed against it. An order for Mandamus was issued, directed to Treasury officer compelling him to settle the decree because settling the claim was a statutory duty cast upon him by law. In the case of Republic vs. Dunsheath, exparte Miredith [1950]2 All E.R. 741, 743 it was noted that mandamus is not only a discretionary relief that this court will grant but also that it is only available for granting where there is a no more appropriate remedy to the applicant. That is to say, if there is a satisfactory alternative remedy available to the applicant, the court will not grant mandamus. The court also noted that if enforcement of the Order of Mandamus will present problems like lack of adequate supervision, the court might show unwillingness to issue the order.
In this case, there is no doubt that direct execution against the Government is forbidden, thus leaving no other alternative method of getting a settlement. All necessary requirements including serving the Attorney General with relevant documents, had been complied with. It is the view of this court therefore that the ex parte applicants are entitled to the Order of Mandamus.
This application is therefore granted as prayed with costs. Orders accordingly.
Dated and delivered at Machakos this 20th day of December 2005.
D. A. ONYANCHA
JUDGE