[2022] KEHC 14392 (KLR)
The court held that the application for leave to apply for orders of mandamus was premature because the applicant failed to demonstrate service of the judgment, decree, and certificate of order against the government, as well as a formal demand for settlement of the decretal sum. The statutory duty to settle a...
Source-derived case information.
- Citation
- [2022] KEHC 14392 (KLR)
- Parties
- Applicant: Republic; Respondent: Secretary, Public Service Board of Kisumu County; Respondent: County Government of Kisumu; Respondent: Chief Finance Officer County Government of Kisumu; Applicant: Isaac Otieno t/a Basilisk Enterprises
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review E010 of 2022
- Procedural Posture
- Judicial Review / Ruling on Leave Application
- Outcome
- application struck out as premature
- Judges
- RE Aburili
- Legal Topics
- Judicial Review, Mandamus, Government Liability, Decree Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Secretary, Public Service Board of Kisumu County
Respondent
County Government of Kisumu
Respondent
Chief Finance Officer County Government of Kisumu
Respondent
Isaac Otieno t/a Basilisk Enterprises
Applicant
Procedural Posture
Judicial Review / Ruling on Leave Application
Legal Issues
- 1 Whether the applicant is entitled to leave to apply for orders of mandamus to compel settlement of a court decree against the government.
- 2 Whether failure to serve judgment, decree, and certificate of order against the government, and to make a demand for settlement, is fatal to the application.
Ratio Decidendi
The court held that the application for leave to apply for orders of mandamus was premature because the applicant failed to demonstrate service of the judgment, decree, and certificate of order against the government, as well as a formal demand for settlement of the decretal sum. The statutory duty to settle a decree against the government only arises after these procedural steps are fulfilled. The absence of evidence of service and demand is fatal to the application, rendering it incompetent at this stage. Consequently, the application was struck out.
Court Disposition
application struck out as premature
Orders
- The application dated June 7, 2022 is struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
Republic v Secretary, Public Service Board of Kisumu County & 2 others; Isaac Otieno t/a Basilisk Enterprises (Exparte) (Judicial Review E010 of 2022) [2022] KEHC 14392 (KLR) (18 October 2022) (Ruling)
Neutral citation: [2022] KEHC 14392 (KLR)
Republic of Kenya
In the High Court at Kisumu
Judicial Review E010 of 2022
RE Aburili, J
October 18, 2022
IN THE MATTER OF THE CONSTITITUTION OF KENYA
AND
IN THE MATTER OF JUDICIAL REVIEW FOR ORDERS OF MANDAMUS
Between
Republic
Applicant
and
Secretary, Public Service Board of Kisumu County
1st Respondent
County Government of Kisumu
2nd Respondent
Chief Finance Officer County Government of Kisumu
3rd Respondent
and
Isaac Otieno t/a Basilisk Enterprises
Exparte
Ruling
1. I have considered the application dated June 7, 2022.
2. The Applicant Isaac Otieno T/a Basilisk Enterprises seeks for leave to apply for Judicial Review orders of Mandamus to compel the Respondent to settle decree of the court in Winam SPM Civil Case No 109/2014.
3. However, there is no evidence of service of judgment, decree and certificate of order against the Government, as well as demand for settlement of the decretal sum. Failure to annex copy of letter of demand is fatal to this application as the Public and Statutory duty to settle decree against the Government only accrues when there is demand and service of decree and Certificate of Order against the Government, as required under section 21 of the Government Proceedings Act, Cap 40 Laws of Kenya.
4. This application is therefore premature.
5. It is hereby struck out with no orders as to costs.
6. File closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 18THDAY OF OCTOBER 2022R. E. ABURILIJUDGE