[2014] KEHC 7999 (KLR)
The court found that the Respondent, having been served with a Certificate of Order against the Government and having failed to pay the decretal sum awarded to the Applicant, was under a statutory duty to make payment as required by Section 21 of the Government Proceedings Act. The Respondent provided no reason for...
Source-derived case information.
- Citation
- [2014] KEHC 7999 (KLR)
- Parties
- Applicant: Republic; Respondent: Principal Secretary, Ministry of Interior & Co-ordination of National Government; Applicant: Herman Marine Nderi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 305 of 2013
- Procedural Posture
- Judicial Review Application / Judgment
- Outcome
- Application for mandamus granted in part; order for committal to civil jail refused.
- Legal Topics
- Mandamus Orders, Government Liability, Enforcement of Judgments, Certificate of Order Against Government
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Principal Secretary, Ministry of Interior & Co-ordination of National Government
Respondent
Herman Marine Nderi
Applicant
Procedural Posture
Judicial Review Application / Judgment
Legal Issues
- 1 Whether an order of mandamus should issue to compel the Respondent to pay the decretal sum awarded to the Applicant.
- 2 Whether the Respondent can be committed to civil jail for failure to pay the decretal amount within 14 days.
Ratio Decidendi
The court found that the Respondent, having been served with a Certificate of Order against the Government and having failed to pay the decretal sum awarded to the Applicant, was under a statutory duty to make payment as required by Section 21 of the Government Proceedings Act. The Respondent provided no reason for non-compliance and did not respond to the application. The court held that this justified the issuance of an order of mandamus compelling the Respondent to pay the amount specified in the Certificate of Order, together with accrued interest until payment in full. However, the court declined to grant the prayer for committal to civil jail at this stage, noting that such an order...
Court Disposition
Application for mandamus granted in part; order for committal to civil jail refused.
Orders
- An order of mandamus is issued directing the Respondent to pay the amount in the Certificate of Order together with interest accrued from the date of its issuance until payment in full.
- The Applicant is awarded the costs of these proceedings.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
JUDICIAL REVIEW DIVISION
JR CASE NO. 305 OF 2013
REPUBLIC ..............................................................................................................................APPLICANT
VERSUS
PRINCIPAL SECRETARY,
MINISTRY OF INTERIOR & CO-ORDINATION OF NATIONAL GOVERNMENT..........RESPONDENT
EX-PARTE
HERMAN MARINE NDERI
JUDGEMENT
1. Through the notice of motion application dated 23rd August, 2013 the ex-parte Applicant (“the Applicant”) Herman Marine Nderi prays for an order of mandamus to issue “against the Respondent to the effect that he pays the exparte applicant the sum of Kshs. 4,162,878/= within 14 days of service of this order and in default he be committed to civil jail for a period not exceeding 6 months.”The Applicant also prays for the costs of the application. The Respondent is the Principal Secretary of the Ministry of Interior and Coordination of National Government.
2. The Applicant’s case is that his fundamental rights were violated by agents of the Kenyan Government in 1986. He later filed Nairobi High Court Petition No. 115 of 2011 against the Attorney General seeking compensation in respect of the said violation. The Court awarded him Kshs. 3,500,000/= with interest which had risen to Kshs. 4,162, 878/= by 2nd August, 2013. The Applicant contends that a Certificate of Order against the Government had been served upon the Attorney General but no payment has been made hence the necessity of these proceedings.
3. The Respondent did not file any reply to the application. On 21st May, 2014 when the matter came up for hearing Mr. Wanga who was holding brief for Ms Chege informed the Court that Ms Chege had not put in a reply as she had not received any instructions from the Respondent.
4. An order of mandamus is issued to a public body directing the performance of a statutory duty where it has failed to do so. The Respondent has a duty to pay a claim once a Certificate of Order has been issued by the Court-see Section 21 of the Government Proceedings Act, Cap 40.
5. The Respondent has been asked to pay the decretal amount but has refused to comply and no reason has been given as to why there has been no compliance. This is a case that calls for the issuance of an order of mandamus. An order of mandamus is therefore issued directing the Respondent to pay the amount in the Certificate of Order together with interest accrued from the date of its issuance until payment in full. The Applicant will also have the costs of these proceedings.
6. The Applicant’s prayer for an order committing the Respondent to civil jail if he fails to pay the decretal amount within 14 days from the date of the issuance of the order of mandamus is misplaced. An order for committal to civil jail can only be made once there is evidence of disobedience of a Court order. At this stage there is no such evidence. This particular prayer therefore fails.
Dated, signed and delivered at Nairobi this 17th day of June , 2014
W. KORIR,
JUDGE OF THE HIGH COURT