[2005] KEHC 2090 (KLR)
The court held that Section 263A of the Local Government Act is mandatory in requiring the Town Clerk of a local authority to pay any judgment debt awarded against the authority from its revenue without delay. The obligation attaches to the office of the Town Clerk, not the individual, and is unaffected by a change...
Source-derived case information.
- Citation
- [2005] KEHC 2090 (KLR)
- Parties
- Applicant: Mombasa Fire Brigade Association; Respondent: Rashid Mwakiwiwi, Town Clerk & Accounting Officer; Respondent: The Municipal Council of Mombasa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 662 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Interpretation and Enforcement of Court Order
- Outcome
- application allowed with costs to the applicant
- Legal Topics
- Mandamus Orders, Enforcement of Judgments, Local Authorities Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mombasa Fire Brigade Association
Applicant
Rashid Mwakiwiwi, Town Clerk & Accounting Officer
Respondent
The Municipal Council of Mombasa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Interpretation and Enforcement of Court Order
Legal Issues
- 1 Whether the Town Clerk is under a statutory duty to pay the judgment debt awarded against the Municipal Council of Mombasa.
- 2 Whether the change of Town Clerk affects the obligation to satisfy the judgment debt from the council's revenue.
Ratio Decidendi
The court held that Section 263A of the Local Government Act is mandatory in requiring the Town Clerk of a local authority to pay any judgment debt awarded against the authority from its revenue without delay. The obligation attaches to the office of the Town Clerk, not the individual, and is unaffected by a change in office holder. Since the judgment debt remains unpaid, the court allowed the application for mandamus to compel the current Town Clerk to satisfy the judgment. The court further awarded costs to the applicant.
Court Disposition
application allowed with costs to the applicant
Orders
- The Town Clerk of the Municipal Council of Mombasa is compelled to pay the judgment debt of KES 6,384,163.30 to the applicant from the council's revenue without delay.
- Costs of the application are awarded to the applicant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA Misc Civil Appli 662 of 2003
IN THE MATTER OF: AN APPLICATION BY MOMBASA FIRE BRIGADE ASSOCIATION FOR LEAVE TO APPLY FOR ORDERS OF MANDAMUS
AND
IN THE MATTER OF: THE LOCAL GOVERNMENT ACT
AND
IN THE MATTER OF: HCC NO. 125a OF 1998 MOMBASA FIRE BRIGADE ASSOCIATION – VS – THE MUNICIPAL COUNCIL OF MOMBASA
IN ACCORDANCE WITH ORDER LIII RULES 1,2,3 & 4 OF THE CIVIL PROCEDURE RULES
REPUBLIC ……………….…………….…………………. APPLICANTS VS 1. RASHID MWAKIWIWI, TOWN CLERK & ACCOUNTING OFFICER 2. THE MUNICIAL COUNCIL OF MOMBASA ….……. RESPONDENTS
EX-PARTE: MOMBASA FIRE BRIGADE ASSOCIATION
R U L I N G
Notice of Motion dated 3. 5.05 seeks the interpretation of a court order made on 24. 2.05 to the effect that the Town Clerk of Mombasa Municipal Council do pay the Defendants claims amounting to Sh. 6,384,163. 30/= At the time the order was made the Town Clerk of Mombasa Municipal was a Mr. Rashid Mwakiwiwi.
No payment has been made to date. The council has a change of Town Clerk, the present one is FRANKLIN MAGAJU.
The Applicants claim arose out of a judgment of court entered against the Council in this court on 17. 6.2002. It was not personally against the Town Clerk. However, Section 263A of Local Government Act Cap 265 it is provided that where judgment has been obtained against a local authority there shall not be execution or attachment but the Clerk of the local authority shall, without delay cause to be paid out of the revenue of local authority such amounts as may satisfy, the judgment that may be awarded against local authority to the person entitled thereto.
The section is mandatory and whoever is a Town Clerk must pay the amount of judgment. It is his duty under the law.
Application is allowed with costs to Applicants.
Dated 20th July 2005.
J KHAMINWA
JUDGE