[2011] KEHC 2639 (KLR)
The court found that the Permanent Secretary, Ministry of Internal Security, as the accounting officer, was under a statutory duty to satisfy the certificate of order against the government by paying the decretal sum as ordered by the court in SPMCC No. 601 of 2005. The respondents failed to oppose the application...
Source-derived case information.
- Citation
- [2011] KEHC 2639 (KLR)
- Parties
- Applicant: Republic; Respondent: Permanent Secretary (OP), Ministry of Internal Security; Respondent: Corporal Alphonse Lumosi; Applicant: Nassir Mwandihi Musungu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 132 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Order of Mandamus
- Outcome
- application allowed
- Judges
- DK Musinga
- Legal Topics
- Judicial Review, Mandamus Orders, Government Liability, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Permanent Secretary (OP), Ministry of Internal Security
Respondent
Corporal Alphonse Lumosi
Respondent
Nassir Mwandihi Musungu
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Order of Mandamus
Legal Issues
- 1 Whether an order of mandamus should issue to compel the Permanent Secretary, Ministry of Internal Security, to pay the decretal sum due under a certificate of order against the government.
- 2 Whether the respondents have a statutory duty to satisfy the decree issued in SPMCC No. 601 of 2005.
Ratio Decidendi
The court found that the Permanent Secretary, Ministry of Internal Security, as the accounting officer, was under a statutory duty to satisfy the certificate of order against the government by paying the decretal sum as ordered by the court in SPMCC No. 601 of 2005. The respondents failed to oppose the application or demonstrate any lawful justification for non-payment. The legal threshold for issuance of an order of mandamus was met, as the applicant had established the existence of a clear statutory duty and the respondents' failure to perform it. Consequently, the court issued an order of mandamus compelling the Permanent Secretary to pay the sum of Kshs.174,425 plus interest from 6th...
Court Disposition
application allowed
Orders
- An order of mandamus is issued compelling the Permanent Secretary, Ministry of Internal Security, to pay the sum of Kshs.174,425 plus interest thereon from 6th May, 2008 until payment in full.
- The costs of this application shall be borne by the Permanent Secretary, the 1st respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION NO. 132 OF 2010
REPUBLIC …………………………………..............……..…….……. APPLICANT
VERSUS
THE PERMANENT SECRETARY (OP) in the
MINISTRY OF INTERNAL SECURITY ………...........….…….. 1ST RESPONDENT
CORPORAL ALPHONSE LUMOSI ………………......……… 2ND RESPONDENT
EX PARTE
NASSIR MWANDIHI MUSUNGU
RULING
The ex parte applicant, hereinafter referred to as “the applicant” filed an application dated 20th December, 2010 seeking an order of mandamus to compel the Permanent Secretary, Ministry of Internal Security in the Office of the President and Corporal Alphonse Lumosi, to immediately pay to the applicant the decretal sum of Kshs.174,425/= plus interest thereon from 6th May, 2008 until payment in full being the amount due to the applicant in terms of a decree issued in SPMCC No. 601 of 2005, Thika. The applicant had been arrested and detained at Thika Police Station on false and malicious allegations. He was thereafter maliciously charged and prosecuted in a criminal case for the offence of creating disturbance in a manner likely to cause breach of peace but was acquitted of the said charges.
Thereafter the applicant filed the aforesaid case, SPMCC No. 601 of 2005 claiming, inter alia, damages for false imprisonment and malicious prosecution. The case was heard and judgment delivered in his favour in the sum of Kshs.150,000/= as general damages.
In June, 2008 a certificate of order against the government was issued by the court showing that the total amount inclusive of costs and interest as at 6th May, 2008 was Kshs.174,425/=. Interest continues to accrue thereon at the rate of 12% per annum. To date the aforesaid sum has not been paid.
The application was not opposed by the respondents despite service of the same and due notice of hearing this application having been given.
An order of mandamus can be issued where there is a duty of a public or quasi-public nature imposed by statute upon a person if that person fails and/or neglects to perform that duty. An order of mandamus does not issue against private citizens who are by law not performing public duty. In this case, the Permanent Secretary, Ministry of Internal Security, as an accounting officer in that ministry, is under a lawful duty to ensure that the certificate of order against the government is satisfied by paying such sum as was ordered by the court. He has failed to do so. Consequently, an order of mandamus is now issued compelling the Permanent Secretary, Ministry of Internal Security, to pay the sum of Kshs.174,425/= plus interest thereon from 6th May, 2008 until payment in full. The costs of this application shall be borne by the said Permanent Secretary, the 1st respondent.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 27TH DAY OF MAY, 2011.
D. MUSINGA
JUDGE
In the presence of:
Nazi – Court Clerk
No appearance for the Applicant