[2009] KEHC 1889 (KLR)
The court held that judicial review remedies, including mandamus, are limited to compelling the performance of public duties by public officials or bodies and do not extend to the enforcement of private contractual rights or the merits of contract disputes. The dispute in question revolved around the validity and...
Source-derived case information.
- Citation
- [2009] KEHC 1889 (KLR)
- Parties
- Applicant: Vihiga Magharibi Enterprises; Respondent: The Town Clerk, Vihiga Municipal Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 487 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Judicial Review Orders
- Outcome
- application dismissed
- Legal Topics
- Judicial Review, Mandamus, Public Duty, Contract Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vihiga Magharibi Enterprises
Applicant
The Town Clerk, Vihiga Municipal Council
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Judicial Review Orders
Legal Issues
- 1 Whether judicial review remedies are available to enforce payment under a contract awarded by a public authority.
- 2 Whether the refusal by the Town Clerk to pay the applicant constitutes a failure to perform a public duty susceptible to mandamus.
- 3 Whether the dispute is properly a matter for judicial review or for ordinary civil proceedings.
Ratio Decidendi
The court held that judicial review remedies, including mandamus, are limited to compelling the performance of public duties by public officials or bodies and do not extend to the enforcement of private contractual rights or the merits of contract disputes. The dispute in question revolved around the validity and alleged breach of a contract for road rehabilitation and the refusal to pay the contractual sum, which is a matter for the civil courts and not for judicial review. The court found that the applicant had not demonstrated a failure by the respondent to perform a public duty susceptible to judicial review, and therefore, the application for judicial review orders was not maintainable.
Court Disposition
application dismissed
Orders
- The Notice of Motion is dismissed.
- Parties to bear their own costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION 487 OF 2008
IN THE MATTER OF AN APPLICATION BY VIHIGA MAGHARIBI ENTEPRISES
FOR LEAVE TO APPLYFOR JUDICIAL REVIEW
AND
IN THE MATTER OF CONTRACT NUMBER MCV/LATF/20060/01
AND
IN THE MATTER OF LOCAL GOVERNMENT ACT
AND
IN THE MATTER OF
REPUBLIC…………………………………................……………………. APPLICANT
VERSUS
THE TOWN CLERK, VIHIGA MUNICIPAL COUNCIL……....……..... RESPONDENT
EX-PARTE VIHIGA MAGHARIBI ENTERPRISES
R U L I N G
Before me is a Notice of Motion dated 25th August, 2008 filed by Kwengu & Company advocates for the ex parte applicant Vihiga Magharibi Enterprises. The respondent is named as THE TOWN CLERK, VIHIGA MUNICIPAL COUNCIL.
The application was filed on 26th August, 2008 under Order LIII Rules 1, 2 and 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (Cap. 21). The orders sought are as follows-
1. An order of mandamus to compel the Town Clerk, Vihiga Municipal Council to pay the applicant the sum of Kenya shillings six hundred thousand only being the contract sum in contract Number MCV/LATF/2006/2007.
2. An order of mandamus to compel the Town Clerk, Vihiga Municipal Council to honour the terms of contract Number CU/LATF/2006/2007.
The application is grounded on the STATEMENT dated 13th August, 2008 filed with the Chamber Summons for leave as well as the VERIFYING AFFIDAVIT sworn by HENRY ANGOWA AMBENGE, the proprietor of the applicant partnership on 13th August, 2003, also filed with the Chamber Summons for leave. The contention is that the applicant was awarded by the VIHIGA MUNICIPAL COUNCIL a contract to rehabilitate a road and completed the work on 22nd March, 2007; that when approached to pay the COUNCIL refused to pay for the work on the allegation that the contract was illegally awarded; that the TOWN CLERK acted ultra vires in refusing to pay, among other reasons.
The application was opposed and a replying affidavit sworn by LESLEY A. KHAYADI the Town Clerk on 3rd September, 2008 was filed. It was deponed in the affidavit, inter alia, that the tender was not awarded in accordance with the Public Procurement and Disposal Act 2005; that the alleged tender was awarded vide a letter dated 22nd February, 2007 signed by DISMAS MABELE who did not have authority to do sign the said letter; that this being a dispute on award of a contract, it is not a matter that can be solved through the judicial review reliefs.
On the hearing date, Mr. Kwengu appeared for the ex parte applicant, and nobody appeared for the respondent.
This application will fail. Judicial review reliefs and jurisdiction can only be invoked in the case of a public official or institution failing to perform a public duty either at common law or under statute. It does not apply to private contracts, and certainly not to the merits as to whether the contract is enforceable or the contractual amount is payable or not – See MEIXNER –VS- AG [2004] 2 KLR 189 at page 194 where the Court of Appeal stated-
“As the learned Judge correctly stated, judicial review is concerned with the decision making process and not with the merits of a decision itself. Judicial review deals with the legality of decisions of bodies or persons whose decisions are susceptible to judicial review.”
Our present case resolves around the validity and alleged breach of a contract for construction or repair of a road and failure to pay the alleged contractual sum, not a complaint on a failure by a public official to comply with requirements of discharging a public duty. That is a matter for the civil court, and the applicant is better advised to approach the civil court for remedies, if any. Judicial review remedies are limited to certiorari, mandamus and prohibition, which are public law remedies, and do not cover enforcement of private contracts.
I find and hold that the judicial review court cannot entertain this application and grant judicial review reliefs. I will therefore disallow the application.
Consequently, the Notice of Motion herein is dismissed.
Parties to bear their own costs, as respondents did not appear at the hearing.
Dated and delivered at Nairobi this 22nd day of June, 2009
GEORGE DULU
JUDGE.