[2005] KEHC 432 (KLR)
The respondent, as Town Clerk of the Municipal Council of Nakuru, is under an express statutory duty to pay the decretal sum awarded in Nakuru CMCC No.1093 of 1999 without delay from the revenue of the local authority. The respondent's failure to comply with the decree and the absence of any explanation or response...
Source-derived case information.
- Citation
- [2005] KEHC 432 (KLR)
- Parties
- Applicant: Republic; Respondent: Town Clerk, Municipal Council of Nakuru
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 75 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Order of Mandamus
- Outcome
- application allowed
- Legal Topics
- Mandamus Orders, Enforcement of Judgments, Public Officer Duties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Town Clerk, Municipal Council of Nakuru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Order of Mandamus
Legal Issues
- 1 Whether an order of mandamus should issue to compel the Town Clerk, Municipal Council of Nakuru to pay the decretal sum awarded in Nakuru CMCC No.1093 of 1999.
- 2 Whether the respondent is under a statutory duty to satisfy the decree without delay.
Ratio Decidendi
The respondent, as Town Clerk of the Municipal Council of Nakuru, is under an express statutory duty to pay the decretal sum awarded in Nakuru CMCC No.1093 of 1999 without delay from the revenue of the local authority. The respondent's failure to comply with the decree and the absence of any explanation or response to the application constitutes a breach of this statutory duty. The court finds that the requirements for the grant of an order of mandamus are satisfied, as the applicant has a clear legal right to the payment and the respondent has a corresponding public duty to act. The court therefore issues an order of mandamus compelling the respondent to pay the decretal amount plus...
Court Disposition
application allowed
Orders
- An order of mandamus is issued compelling the respondent to pay the decretal amount in Nakuru CMCC No.1093 of 1999 plus accrued interest within fourteen (14) days.
- Costs of this application are awarded to the applicant.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Misc Civ Suit 75 of 2005
REPUBLIC ………………………………………………….……………. APPLICANT
VERSUS
TOWN CLERK, MUNICIPAL COUNCIL OF NAKURU …………RESPONDENT
RULING
This is an application by one Mr. Christopher Mwangi seeking an order of Mandamus to compel the Town Clerk, Municipal Council of Nakuru to pay a sum of Kshs.303,914/= plus interest and costs being the decretal sum and costs as awarded in Nakuru CMCC No.1093 of 1999 Christopher Mwangi vs Odhiambo Tukiko and Municipal Council of Nakuru. The said judgment was delivered in favour of the subject herein sometimes in 2001. A decree was thereafter issued compelling the respondents to pay the decretal sum but todate they have refused, failed and/or neglected to do so. The applicant said that he had made numerous efforts to have the respondent comply with the decree but to no avail. The applicant was left with no alternative but to file this application. The said application was served upon the respondent but he did not file any response thereto.
The prerogative order of mandamus is issued in cases where there is a duty of a public or quasi-public nature or a duty imposed by statute and it is issued to compel the performance of such a duty. A local authority has an obligation to satisfy every lawful decree that is issued against it and the person who has to ensure that is done is the clerk of the local authority as the Chief Executive and administrative officer according to the provisions of Section 129(1) of the Local Government Act Cap 265 Laws of Kenya. Section 263A is also very clear regarding on the issue. It provides as follows:
(a)“Where any judgment or order has been obtained
against a local authority, no execution or attachment
or process in the nature thereof shall be issued against
the local authority or against the immovable property
of the local authority or its vehicle or its other operating
equipment, machinery, fixtures or fittings, but the clerk
of the local authority shall, without delay, cause to be
paid out of the revenue of the local authority such
amounts as may, by the judgment or order, be awarded
against the local authority to the person entitled
thereto.
(b)no immovable property of the local authority or
any of its vehicles or its other operating equipment,
machinery, fixture or fittings shall be seized or
taken by any person having by law power to
attach or distrain property without the previous
written permission of the clerk of the local authority.”
It is evident that the respondent herein is in breach of an express statutory duty in failing to pay without delay out of the revenue of the local authority the decretal sum. The respondent did not even bother to come to court or file any papers to explain why he had failed to do so over the years.
The orders are warranted and consequently I hereby issue an order of mandamus to compel the respondent to pay the decretal amount in Nakuru CMCC No.1093 of 2004 plus the accrued interest thereon within the next fourteen (14) days from the date hereof failing which the respondent will be liable to contempt of court proceedings. The costs of this application are also awarded to the applicant.
DATED, SIGNED & DELIVERED at Nakuru this 28th day of July, 2005.
D. MUSINGA
JUDGE
28/7/2005