[2024] KEELRC 1597 (KLR)
The court found that the ex parte applicants had established that their party to party costs were taxed and a certificate of costs was issued and served upon the respondents. The respondents failed to satisfy the costs and did not provide any explanation or disclose any difficulty in doing so. The court held that...
Source-derived case information.
- Citation
- [2024] KEELRC 1597 (KLR)
- Parties
- Applicant: Republic; Respondent: The County Secretary Nyamira County; Respondent: The Chief Officer Finance & Accounting Services Nyamira County; Respondent: The Chief Officer Economic Planning, Resource Mobilisation And ICT, Nyamira County; Applicant: Andrew Ochengo Osumu; Applicant: Boaz Momanyi Nyauma; Applicant: Herbert Nyamwange; Applicant: Everlyne Mangaa
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application E009 of 2024
- Procedural Posture
- Judicial Review Application / Judgment
- Outcome
- application allowed
- Judges
- S Radido
- Legal Topics
- Judicial Review, Mandamus, Execution of Decree, Party to Party Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The County Secretary Nyamira County
Respondent
The Chief Officer Finance & Accounting Services Nyamira County
Respondent
The Chief Officer Economic Planning, Resource Mobilisation And ICT, Nyamira County
Respondent
Andrew Ochengo Osumu
Applicant
Boaz Momanyi Nyauma
Applicant
Herbert Nyamwange
Applicant
Everlyne Mangaa
Applicant
Procedural Posture
Judicial Review Application / Judgment
Legal Issues
- 1 Whether the ex parte applicants are entitled to an order of mandamus compelling the respondents to pay the taxed party to party costs.
- 2 Whether the respondents have willfully neglected or refused to satisfy the certificate of costs issued against them.
Ratio Decidendi
The court found that the ex parte applicants had established that their party to party costs were taxed and a certificate of costs was issued and served upon the respondents. The respondents failed to satisfy the costs and did not provide any explanation or disclose any difficulty in doing so. The court held that this amounted to willful neglect to satisfy a lawful debt. The legal threshold for the grant of an order of mandamus was met, as the applicants had a clear legal right to payment and the respondents had a corresponding public duty to pay. The absence of any response or opposition from the respondents further reinforced the applicants' entitlement to the relief sought....
Court Disposition
application allowed
Orders
- An order of mandamus is issued against the respondents compelling them to pay Kshs 1,762,050 to the ex parte applicants as party to party costs in Kisumu ELRC Petition No. 23 of 2019.
- The ex parte applicants are awarded costs of the Motion.
Full Case Text
Judgment text and source record
43 paragraphs
Republic v The County Secretary Nyamira County & 2 others; Osumu & 3 others (Exparte Applicants) (Judicial Review Application E009 of 2024) [2024] KEELRC 1597 (KLR) (26 June 2024) (Judgment)
Neutral citation: [2024] KEELRC 1597 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Judicial Review Application E009 of 2024
S Radido, J
June 26, 2024
IN THE MATTER OF AN APPLICATION TO APPLY FOR JUDICIAL REVIEW (MANDAMUS) AND IN THE MATTER OF THE GOVERNMENT PROCEEDINGS ACT, S (2),(4) AND IN THE MATTER OF ORDER 22 AND 29 OF THE CPA CAP 21 AND IN THE MATTER OF ORDER 53(1) OF THE CIVIL PROCEDURE RULES AND IN THE MATTER OF EXECUTION OF A DECREE FOR THE SUM OF KSHS 1,762,050. 00 ONLY AND IN THE MATTER OF KISUMU ELRC PETITION NO. 23 OF 2019, ANDREW OCHENGO OSUMU & 3 OTHERS v THE COUNTY GOVERNMENT OF NYAMIRA & 6 OTHERS
Between
Republic
Applicant
and
The County Secretary Nyamira County
1st Respondent
The Chief Officer Finance & Accounting Services Nyamira County
2nd Respondent
The Chief Officer Economic Planning, Resource Mobilisation And Ict, Nyamira County
3rd Respondent
and
Andrew Ochengo Osumu
Exparte Applicant
Boaz Momanyi Nyauma
Exparte Applicant
Herbert Nyamwange
Exparte Applicant
Everlyne Mangaa
Exparte Applicant
Judgment
1. Through a Motion dated 28 March 2024, the ex parte applicants seek orders:i.An order of mandamus to issue against the Respondents herein namely the County Secretary, the CEC Member, Finance and Accounting Services & the Chief Officer, Economic Planning, Resource Mobilisation & ICT to compel them to proceed and pay out the decretal sum of Kshs 1,762,050. 00/- only, being Party to Party Bill of Costs in Kisumu ELRC Petition No. 23 of 2019, Andrew Ochengo Osumo & 3 others v the County Government of Nyamira & 6 others, the same being assessed costs of the Petition whose Ruling was delivered on the 2nd November 2022. ii.The Court be pleased to set timelines and/or duration within which the Respondents will settle the decretal sum with interest accruing until the date of payment.iii.That the applicants be at liberty to apply to this Court for all necessary and/or consequent orders that this Honourable Court may deem fit and just to grant in the circumstances.iv.Costs of the application be provided for.
2. The grounds in support of the Motion are that the ex parte applicants’ Party to Party costs were taxed at Kshs 1,762,050/- on 18 January 2022; the Certificate of Taxation was served upon the County Attorney as required by law and that despite the service, the Respondents had refused or declined to satisfy the costs.
3. When the Motion came up on 9 May 2024, Ms Moenche for the Respondents indicated that service was effected on 18 April 2024. Ms Moenche requested for 21 days in order to respond.
4. The Court directed the Respondents to file and serve a response on or before 20 May 2024. The Respondents responses were not on record by 13 June 2024, when the Court prepared this Judgment.
5. The parties were also directed to file and exchange submissions.
6. The ex-parte applicants filed their submissions on 28 May 2024. The Respondents' submissions were not on record by the agreed timeline of 14 June 2024.
7. The Court has considered the Motion, affidavits, and submissions on record.
8. The Court granted leave to the ex parte applicants on 18 March 2024 to commence these judicial review proceedings.
9. There is evidence on record that the Respondents were served for an advocate appeared in Court on 9 May 2024 and addressed the Court, though she had not formally come on record.
10. Further, there is evidence that both the Certificate of Taxation and Certificate of Costs against the County Government were issued and served.
11. The Respondents have failed or declined to satisfy the costs. No explanation or difficulty has been disclosed for the failure to satisfy the costs. It is, therefore, the position that there has been willful neglect to satisfy the costs.
12. The Court finds the Motion merited.
Orders 13. In light of the above, the Court orders:(i)An order of mandamus be and is hereby issued against the Respondents herein namely the County Secretary, the CEC Member, Finance and Accounting Services & the Chief Officer, Economic Planning, Resource Mobilisation & ICT compelling them to pay sum of Kshs 1,762,050. 00/- only, being Party to Party Bill of Costs in Kisumu ELRC Petition No. 23 of 2019, Andrew Ochengo Osumo & 3 others v the County Government of Nyamira & 6 Ors to the ex-parte applicants.
14. The ex parte applicants to have costs of the Motion.
DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 26TH DAY OF JUNE 2024. Radido Stephen, MCIArbJudgeAppearancesFor ex parte applicants Ochoki & Co. AdvocatesFor Respondents no formal participationCourt Assistant Chemwolo