[2020] KEHC 8213 (KLR)
The court held that the Clerk to the County Assembly, as the accounting officer, is the proper party to be compelled by an order of mandamus to comply with the judgment requiring payment to the applicant. The court found that the decree and certificate of costs had been served on the Clerk, and no explanation for...
Source-derived case information.
- Citation
- [2020] KEHC 8213 (KLR)
- Parties
- Applicant: James Aggrey Mwamu; Respondent: Speaker Migori County Assembly; Respondent: Clerk Migori County Assembly; Respondent: County Assembly Public Service Board, Migori
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 12 of 2019
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- Order of mandamus granted; alternative reliefs declined; costs to applicant.
- Judges
- TW Cherere
- Legal Topics
- Judicial Review Remedies, Mandamus Orders, Public Body Liability, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
James Aggrey Mwamu
Applicant
Speaker Migori County Assembly
Respondent
Clerk Migori County Assembly
Respondent
County Assembly Public Service Board, Migori
Respondent
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether an order of mandamus should issue to compel the respondents to comply with a judgment requiring payment to the applicant.
- 2 Whether committal to civil jail or attachment of accounts can be granted in judicial review proceedings.
- 3 Who is the proper party to comply with the court order in respect of the Migori County Assembly.
Ratio Decidendi
The court held that the Clerk to the County Assembly, as the accounting officer, is the proper party to be compelled by an order of mandamus to comply with the judgment requiring payment to the applicant. The court found that the decree and certificate of costs had been served on the Clerk, and no explanation for non-compliance was offered. The court further held that the mere intention to challenge the judgment does not bar execution or compliance. However, the court declined to grant the alternative prayers for committal to civil jail and attachment of the 3rd respondent's account, holding that such remedies are not available through judicial review proceedings. The court therefore...
Court Disposition
Order of mandamus granted; alternative reliefs declined; costs to applicant.
Orders
- An order of mandamus is issued compelling the 2nd Respondent to comply with the judgment of Justice Ochieng dated 04th June, 2019 in Misc. 108 Of 2018 requiring payment of Kshs. 1,365,209.80 to the applicant.
- The 2nd Respondent is directed to comply with the above order within 60 days from the date hereof.
Full Case Text
Judgment text and source record
52 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KISUMU
(CORAM: CHERERE-J)
JUDICIAL REVIEW CAUSE NO. 12 OF 2019
IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEWPROCEEDINGS
FOR ORDERS OF MANDAMUS AND PROHIBITION
AND
IN THE MATTER OF JAMES AGGREY MWAMU
AND
IN THE MATTER OF MIGORI COUNTY ASSEMBLY
AND
IN THE MATTER OF THE DECISION BY HON. JUSTICE OCHIENG ON 04TH JUNE, 2019
IN THE MATTER OF MISC APPLICATION NO. 108 OF 2018 AND IN THEMATTER OF
COUNTY GOVERNMENT ACT AND THE RULES THEREOF
BETWEEN
REPUBLIC.................................................................................................................APPLICANT
AND
THE SPEAKER MIGORI COUNTY ASSEMBLY......................................1ST RESPONDENT
THE CLERK MIGORI COUNTY ASSEMBLY..........................................2ND RESPONDENT
THE COUNTY ASSEMBLY PUBLIC SERVICE BOARD, MIGORI......3RD RESPONDENT
EXPARTE APPLICANT.................................................................JAMES AGGREY MWAMU
JUDGMENT
Background
1. By a Notice of Motion dated 09th October, 2019, the ex parte applicant herein, JAMES AGGREY MWAMU, seeks the following orders:
1. An order of Mandamus compelling the 1st, 2nd and 3rd Respondents to comply with the judgment of Justice Ochieng dated 04th June, 2019 in Misc. 108 of 2018 James Aggrey Mwamu T/A Mwamu & Co. Advocates V Migori County Assembly requiring that Applicant be paid Kshs. 1,365,209,80
2. That in the alternative, the 1st and 2nd Respondents be committed to civil jail for six months for failure to pay the aforesaid amount together with interest
3. That in the alternative, the court be pleased to attach account number 1253455813 KCB Migori Branch belonging to the 3rd Respondent
2. The Applicant’s bill of costs in Kisumu Industrial Court No. 322 of 2014 Francis Nyainda v County Assembly of Kisumu was taxed at Kshs. 1,365,209,80 and a certificate of costs thereof was issued on 20th August, 2018.
3. By an order dated 04th June, 2019, judgment was issued in Misc. 108 Of 2018 James Aggrey Mwamu T/A Mwamu & Co. Advocates v Migori County Assembly in terms of the certificate of costs hereinabove for the sum of Kshs. 1,365,209,80 together with interest at court rates from 04th June, 2019.
4. The issue for determination is whether this Court ought to grant the orders sought herein.
5. Section 148. of the Public Finance Management Act, 2012 provides as follows:
(1) A County Executive Committee member for finance shall, except as otherwise provided by law, in writing designate accounting officers to be responsible for managing the finances of the county government entities as is specified in the designation.
(2) Except as otherwise stated in other legislation, the person responsible for the administration of a county government entity, shall be the accounting officer responsible for managing the finances of that entity.
(3) A County Executive Committee member for finance shall ensure that each county government entity has an accounting officer in accordance with Article 226 of the Constitution.
(4) The Clerk to the county assembly shall be the accounting officer of the county assembly. (emphasis added).
5. It must always be remembered that a judicial review application is neither a criminal case nor a civil suit hence the application ought to be brought against the person who is bound to comply with the orders sought therein (See Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County Ex Parte Stanley Muturi [2016] eKLR).
6. Judgment in Misc. 108 Of 2018 James Aggrey Mwamu T/A Mwamu & Co. Advocates v Migori County Assembly was entered against the Migori County Assembly whose accounting officer is the Clerk to the County Assembly who is the proper party to this cause.
7. Migori County Assembly appointed counsel to represent it in this cause. I am therefore persuaded that the decree in Misc. 108 Of 2018 James Aggrey Mwamu T/A Mwamu & Co. Advocates v Migori County Assembly was served on the Clerk to the County Assembly, the 2nd Respondent herein.
8. Obedience of a court order is fundamental to the administration of justice and the rule of law. The 2nd Respondent has not offered any explanation for failure to settle the decretal sum. The fact that the 2nd Respondent intends to challenge the judgment and the decree is not a bar to execution of the same.
9. Accordingly, it is hereby ordered THAT:
1. An order of Mandamus be and is hereby issued compelling the 2nd Respondent to comply with the judgment of Justice Ochieng dated 04th June, 2019 in Misc. 108 Of 2018 James Aggrey Mwamu T/A Mwamu & Co. Advocates V Migori County Assembly requiring that Applicant be paid Kshs. 1,365,209,80
2. The 2nd Respondent is directed to comply with Order (1) above within 60 days from the date hereof
3. The prayers for committal to civil jail and attachment of 3rd Respondent’s account number 1253455813 KCB Migori Branch cannot be made by way of a judicial review application and are therefore declined
4. 2nd Respondent shall bear the costs of this cause
DATED AND SIGNED THIS 20th .DAY OF February 2020
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Okodoi
For the Applicant - Ms. Adwar
For the Respondents - N/A