[2023] KEHC 24116 (KLR)

Republic v Principal Administrative Secretary Office of the Deputy President & another; Wanderi (Exparte) (Application 151 of 2019) [2023] KEHC 24116 (KLR) (Judicial Review) (27 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24116 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application 151 of 2019

J Ngaah, J

October 27, 2023

Between

Republic

Applicant

and

Principal Administrative Secretary Office Of The Deputy President

1st Respondent

The Honourable Attorney General

2nd Respondent

and

Edward Kinyua Wanderi

Exparte

Judgment

1. Before court is the applicant’s motion dated 10 December 2019 in which he seeks the following orders:1. An order of Mandamus be issued, directed to the Respondents herein namely: the Principal Administrative Secretary Office of the Deputy President, to pay the Applicant the sum of Kshs 952,042. 54 being the decretal amount awarded in Milimani Civil Case No. 2269 of 2015 at Nairobi together with Kshs 117,170 being the Certified costs thereon together with interest thereon at 12% per annum from 20th September 2016 until payment in full.2. That accrued interest from the date of decree to payment in full be borne by the Respondents.3. The costs of this application and the Notice of Motion dated 2nd May20 19 be borne by the Respondents.”

2. The application is expressed to be brought under Order 53 Rule 3 of the Civil Procedure Rules. It is based on the statutory statement dated 2 May 2019 and an affidavit verifying the facts relied upon sworn by the applicant on even date.

3. According to the statement and the affidavit, the applicant is the decree-holder in Milimani Magistrates Court Civil Case No. 2269 of 2015 in which he successfully made a claim against the Attorney General. He obtained a decree on 20 September 2016. According to the decree, the decretal amount is Kshs. 952,042. 54 while costs were certified at Kshs. Kshs. 117,170.

4. The applicant subsequently obtained a certificate of order against government that is in the same terms as the decree. The certificate of order against government is stamped with the official stamp of the office of the Attorney General showing that it was received in the Attorney General’s civil litigation registry on 13 February 2018.

5. More than five years since the certificate of order against the Government was served, the decree remains unsettled. It is the applicant’s case, that there is no justifiable reasons for failure to pay the decretal sum plus costs and interest as ordered. Since there is no other legal remedy available to the applicant to enforce payment, the applicant prays that a mandamus order does issue.

6. The respondent did not respond to the application and thus the facts material to the applicant’s application are not in dispute. These are that the applicant holds a valid court decree which has not been satisfied and that he also obtained a certificate of order against government which was duly served upon the Attorney General.

7. Section 21 of the Government Proceedings Act generally deals with the manner and procedure of enforcement of orders and decrees against Government. This section reads as follows:21. Satisfaction of orders against the Government(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:

8. Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.(2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.(3)If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:

9. Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.(4)Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.(5)This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.

10. No doubt, the applicant complied with subsections (1) and (2) and obtained the certificate of order against Government which, as noted, was duly served upon the Attorney General. According to subsection (3), the accounting officer for the Government Ministry concerned was enjoined to settle the decree as per the certificate.

11. Subsection (4) is clear that the Government is exempted from ordinary process of execution of decrees thus reinforcing the obligation on the accounting officer to settle any sums due from the government in proceedings to which the government is a party.There is, therefore, every reason to compel the accounting officer, by way of a mandatory or mandamus order to pay.

12. The order of mandamus is the only means through which the applicant’s decree can be satisfied because, as noted, the Government is protected from the ordinary process of execution of decrees or orders. The accounting officer has to be compelled to perform his statutory duty under section 21(3) of the Act and pay what has been decreed as due and owing to the applicant.

13. According to Halsbury's Laws of England/Judicial Review (volume 61 (2010) 5th Edition)/5. Judicial Remedies/ (1) Introduction paragraph 689:A mandatory order is, in form, a command issuing from the High Court, directed to any person, corporation or inferior tribunal requiring him, or them, to do some particular thing specified in the command which appertains to his or their office and is in the nature of a public duty (See Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 1 All ER 694, HL). The breach of duty may be a failure to exercise a discretion, or a failure to exercise it according to proper legal principles.”

14. This is reiterated in paragraph 703 which states:A mandatory order is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or it to do some particular thing specified in the order which appertains to his or its office and is in the nature of a public duty… the purpose of a mandatory order is to compel the performance of a public duty, whether of an inferior court or tribunal to exercise its jurisdiction, or that of an administrative body to fulfil its public law obligations. It is a discretionary remedy.”

15. And with particular reference to public officers who, like in the instant case, fail to perform their duty, paragraph 706 is clear that a mandamus order may be issued to compel them to carry out the duty. It reads as follows:706. Public duties by government officials.

16. If public officials or public bodies fail to perform any public duty with which they have been charged, a mandatory (mandamus) order may be made to compel them to carry out the duty (See R v Metropolitan Police Comr, ex p Blackburn (No 3) [1973] QB 241, [1973] 1 All ER 324, CA; R v London Transport Executive, ex p GLC [1983] QB 484, [1983] 2 All ER 262, DC.)”

17. The applicant has demonstrated, and it is not in dispute, that it duly extracted a certificate of order against government and that the same was duly served upon the Attorney-General five years ago.

18. A demand for payment having been made, and the accounting officer having failed to pay, no other evidence is required to demonstrate that the accounting officer has failed to perform a public duty with which he is charged under section 21(3) of the Government Proceedings Act. A mandamus order would properly issue in such circumstances.

19. Accordingly, I hereby allow the applicant’s motion dated 10 December 2019 in terms of prayer (1). The applicant will also have costs of the application. It is so ordered.

SIGNED, DATED AND DELIVERED AT WAJIR ON 27 OCTOBER 2023NGAAH JAIRUSJUDGE