[2012] KEHC 5789 (KLR)
The court held that the applicants were entitled to an order of mandamus compelling the Town Clerk and Municipal Council of Nakuru to pay the decretal sum and taxed costs awarded in HCC 90/1993. The court found that Section 263A of the Local Government Act bars execution against the property of a local authority,...
Source-derived case information.
- Citation
- [2012] KEHC 5789 (KLR)
- Parties
- Applicant: Republic; Respondent: Town Clerk, Municipal Council of Nakuru; Respondent: Municipal Council of Nakuru; Applicant: Charles Wachiuri; Applicant: Margaret Muthoni Thuo; Applicant: David Waweru; Applicant: Hannah Wambui; Applicant: Simon Macharia; Applicant: Shadrack Waigwa; Applicant: Philip Maina; Applicant: Lanet Hill Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 129 of 2011
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- order_of_mandamus_granted
- Judges
- RPV Wendoh
- Legal Topics
- Mandamus Against Public Body, Enforcement of Judgment, Local Authority Liability
- 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
Municipal Council of Nakuru
Respondent
Charles Wachiuri
Applicant
Margaret Muthoni Thuo
Applicant
David Waweru
Applicant
Hannah Wambui
Applicant
Simon Macharia
Applicant
Shadrack Waigwa
Applicant
Philip Maina
Applicant
Lanet Hill Co. Ltd.
Applicant
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether an order of mandamus should issue to compel the respondents to pay the decretal sum and costs awarded in HCC 90/1993.
- 2 Whether the Town Clerk, as Chief Executive Officer, is under a statutory duty to satisfy the decree against the Municipal Council.
- 3 Whether Section 263A of the Local Government Act bars execution against the local authority and necessitates mandamus.
Ratio Decidendi
The court held that the applicants were entitled to an order of mandamus compelling the Town Clerk and Municipal Council of Nakuru to pay the decretal sum and taxed costs awarded in HCC 90/1993. The court found that Section 263A of the Local Government Act bars execution against the property of a local authority, but imposes a statutory duty on the clerk to pay any judgment or order from the authority's revenue. The respondents failed to perform this duty and did not respond to the application. The court concluded that mandamus was the appropriate remedy to enforce the judgment, as the applicants had no other means of execution. The order of mandamus was granted, requiring payment within...
Court Disposition
order_of_mandamus_granted
Orders
- An order of mandamus is issued compelling the respondents to pay the decretal sum and costs within 30 days.
- Costs of this application to be borne by the respondents.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT NAKURU
Judicial Review 129 of 2011
REPUBLIC....................................................................................................................APPLICANT
VERSUS
TOWN CLERK, MUNICIPALCOUNCIL OF NAKURU.................................1ST RESPONDENT
MUNICIPAL COUNCIL OF NAKURU.............................................................2ND RESPONDENT
EXPARTE:
CHARLES WACHIURI............................................................................................1ST SUBJECT
MARGARET MUTHONI THUO.............................................................................2ND SUBJECT
DAVID WAWERU...................................................................................................3RD SUBJECT
HANNAH WAMBUI...............................................................................................4TH SUBJECT
SIMON MACHARIA..............................................................................................5TH SUBJECT
SHADRACK WAIGWA..........................................................................................6TH SUBJECT
PHILIP MAINA.....................................................................................................7TH SUBJECT
LANET HILL CO. LTD.........................................................................................8TH SUBJECT
JUDGMENT
This is a Judicial Review application in which the 8 ex-parte applicants namely; Charles Wachiuri, Margaret Muthoni Thuo, David Waweru, Hannah Wambui, Simon Macharia, Shadrack Waigwa, Philip Maina, Lanet Hill Co. Ltd. Seek an order of mandamus to issue to compel the Town Clerk, Municipal Council of Nakuru and Municipal Council of Nakuru (1st and 2nd respondents) to pay the applicants a total sum of Kshs.3,485,716/- being damages and costs granted against the 2nd respondent by the High Court of Kenya at Nakuru in Civil Case No. 90/1993, J. Koome gave judgment in favour of the applicants on 9/5/08 together with interest on the said sum at the rate of 14% per annum since the delivery of the judgment. The application is supported by the statement of facts dated 16/11/2011 and the verifying affidavit sworn by David Waweru (3rd applicant) one of the plaintiffs in HCC 90/93. The dispute involved ownership and possession of L.R. 20289 Nakuru Municipality. The 2nd respondent was ordered to compensate each of the applicants in the sum of Kshs.250,000/-, as general damages, which totals Kshs.2,000,000/-. The costs were taxed at Kshs.1,485,716/-. A decree was issued on 9/9/2011 (DWVI). It is the applicants’ contention that the defendants have failed, refused or neglected to pay the said sum. The costs were taxed and certificate of costs and decree was sent to the respondent but the respondents have not paid and that is what has prompted the filing of this application. The respondents were served with this notice of motion but there has been no response thereto or appearance at the hearing.
An order of mandamus lies to compel a public body or public officer to perform its/his statutory duty, or where there is a lawful decree issued against the respondent, the respondent has an obligation to satisfy it. The Town Clerk is the Chief Executive Officer of the 2nd respondent who is bound to ensure that the decree is satisfied. The applicants cannot execute against the respondent directly because Section 263A of Local Government Act bars it. The Section provides as follows:-
“263A (a) Where any judgment or order has been obtained against a local authority, no execution or attachment or process in the nature hereof 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.”
The 1st respondent has failed or neglected to perform a duty imposed on him by statute and failed to reply to this application to demonstrate why the respondent cannot pay up.
In the end, I find that the order sought is merited and I hereby grant the order of mandamus as prayed. The sums are payable within 30 days from today’s date. Costs of this application be borne by the respondent.
DATED and DELIVERED this 31st day of July, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Kibet holding brief for Mr. Karanja for the applicants
N/A for the respondents
N/A for subjects
Kennedy – Court Clerk