[2008] KEHC 233 (KLR)
The court found that the application for mandamus was unopposed, as the respondent admitted the debt and only sought more time to pay due to liquidity issues. The statutory responsibility to settle court awards rests with the Town Clerk under section 263(A) of the Local Government Act. The court held that financial...
Source-derived case information.
- Citation
- [2008] KEHC 233 (KLR)
- Parties
- Applicant: Republic; Respondent: Town Clerk, City Council of Nairobi; Applicant: Njagi Wanjeru practicing as Njagi Wanjeru & Company Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 82 of 2008
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Legal Topics
- Judicial Review, Mandamus, Enforcement of Judgments, Costs Taxation
- 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
Republic
Applicant
Town Clerk, City Council of Nairobi
Respondent
Njagi Wanjeru practicing as Njagi Wanjeru & Company Advocates
Applicant
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether an order of mandamus should issue to compel the Town Clerk, City Council of Nairobi, to pay the decretal sum and accrued interest as per the court order.
- 2 Whether the respondent is statutorily obligated under section 263(A) of the Local Government Act to settle court awards against the City Council.
- 3 Whether the respondent's request for more time due to liquidity problems is a valid ground to refuse or delay the mandamus order.
Ratio Decidendi
The court found that the application for mandamus was unopposed, as the respondent admitted the debt and only sought more time to pay due to liquidity issues. The statutory responsibility to settle court awards rests with the Town Clerk under section 263(A) of the Local Government Act. The court held that financial difficulties do not absolve the statutory officer from the legal obligation to pay a judgment debt. Therefore, the applicant was entitled to the mandamus order compelling payment of the decretal sum and accrued interest, as well as costs of the application.
Court Disposition
application allowed
Orders
- An order of mandamus is issued compelling the Town Clerk, City Council of Nairobi, to pay the decretal sum of Kshs.4,500,000 plus accrued interest of Kshs.577,500 as at 1.3.2008 and further accruing interest until full payment, in terms of the court order dated 2nd November, 2007.
- The costs of this application and the Chamber Summons dated 7th March, 2008 are awarded to the ex-parte applicant.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc. Civ. Appli. 82 of 2008
REPUBLIC …………….....………..……………………….. APPLICANT
-V E R S U S-
THE TOWN CLERK CITY COUNCIL
OF NAIROBI RESPONDENT…………………….. RESPONDENT
EX-PARTE: NJAGI WANJERU practicing as
NJAGI WANJERU & COMPANY ADVOCATES
J U D G M E N T
This is a Notice of Motion dated 11th March, 2008 filed by M/s Njagi Wanjeru & company advocates, on behalf of NJAGI WANJERU practicing as NJAGI WANJERU & COMPANY ADVOCATES.
The respondent is named as the TOWN CLERK, CITY COUNCIL OF NAIROBI. The application was brought under Order 53 rule 3 of the Civil Procedure Rules, and was filed on 12th March, 2008. The orders sought are as follows-
Ø THAT an order of mandamus do issue directed to the respondent Town Clerk City Council of Nairobi compelling him to forthwith and without delay cause to be paid to the ex-parte applicant the decretal sum of Kshs.4,500,000/= plus the accrued interest of Kshs.577,500. 00 thereof as at 1. 3.2008 and further accruing interest on the said decretal sum until full and final payment in terms of the court order dated 2nd November, 2007 by Honourable Mr. Justice Azangalala in H.C. Misc. Civil Application No. 1366 of 2006 at Milimani (Njagi Wanjeru & Company advocates -vs- the City Council of Nairobi.)
Ø THAT the costs of this application and the Chamber Summons dated 7th March, 2008 be borne by the respondent Town Clerk City Council of Nairobi.
The application is grounded on the STATEMENT dated 3rd March, 2008, and the VERIFYING AFFIDAVIT sworn on 3rd March, 2008 by NJAGI WANJERU, both filed with the Chamber Summons for leave.
According to the VERIFYING AFFIDAVIT, judgment for costs was entered against the City Council of Nairobi on 2nd November, 2007, following a consent order for taxed costs in Nairobi HC. Miscellaneous Application No. 1654 of 2004 in the sum of Kshs.4,500,000/-. Though on 28th February, 2007, the Director of the Legal Services of the City Council of Nairobi undertook to liquidate the taxed costs within a year, no payment had so far been made, thus necessitating these proceedings. The ground of suing the Town Clerk was that section 263 (A) of the Local Government Act (Cap. 265), put the statutory responsibility on the Town Clerk to settle such court awards.
At the hearing of the application, Mr. Njagi for the Applicant submitted that in 2007 the respondent had asked the applicant not to take execution action for a year, and the applicant did not take any precipitate action. Though several letters were written to the respondent to settle the amount, no payment had been effected. That is the reason why the applicant had come to court through the judicial review process.
Mr. Abwao for the respondent submitted that the amount claimed was truly outstanding and unpaid. However, the City Council of Nairobi had liquidity problems. Therefore, counsel requested for a stay of 30 days if orders are granted, to sort out the issue of payment.
I have considered the application, documents filed and the submissions of counsel for the parties.
Clearly, this application is not opposed. It was filed on 12th March, 2008. When counsel for the respondent came to court for the hearing on 3/10/2008, he admitted that the amount claimed was due. He only asked for time to pay.
Considering the facts before me, I really do not have any reason to decline granting the orders sought.
Consequently, I allow the application and grant the mandamus orders sought, which I have already reproduced earlier in this judgment. I also award costs to the ex-parte applicant as prayed.
It is so ordered.
Dated and delivered at Nairobi this 5th December, 2008.
GEORGE DULU
JUDGE.
In the presence of-
Mr. Njagi for applicant
Mr. Abwao for respondent