[2012] KEHC 379 (KLR)
The court found that the Applicant had demonstrated entitlement to an order of mandamus, as the Respondent, being the Town Clerk of the City Council of Nairobi, failed to perform the statutory duty imposed by Section 263A of the Local Government Act to pay the decretal sums awarded in favour of the Applicant in...
Source-derived case information.
- Citation
- [2012] KEHC 379 (KLR)
- Parties
- Applicant: Republic; Defendant: Town Clerk, City Council of Nairobi; Applicant: Njagi Wanjeru practising as Njagi Wanjeru & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 88 of 2012
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application allowed
- Judges
- CW Githua
- Legal Topics
- Mandamus Orders, Enforcement of Judgments, Statutory Duties of Local Authorities
- 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
Defendant
Njagi Wanjeru practising as Njagi Wanjeru & Co. Advocates
Applicant
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the Town Clerk of the City Council of Nairobi has a statutory duty to pay decretal sums awarded against the Council without delay.
- 2 Whether the Applicant is entitled to an order of mandamus to compel payment of the outstanding decretal sums and interest.
Ratio Decidendi
The court found that the Applicant had demonstrated entitlement to an order of mandamus, as the Respondent, being the Town Clerk of the City Council of Nairobi, failed to perform the statutory duty imposed by Section 263A of the Local Government Act to pay the decretal sums awarded in favour of the Applicant in various civil suits. The Respondent did not contest the application or provide any explanation for the failure to pay. The court held that the Applicant was deserving of the order of mandamus as prayed, and allowed the application in terms of Prayer 1, compelling the Respondent to pay the outstanding decretal sums and accrued interest. On costs, the court ordered each party to bear...
Court Disposition
application allowed
Orders
- An order of mandamus is issued compelling the Town Clerk, City Council of Nairobi, to pay the Applicant all decretal sums awarded in his favour in the specified civil suits together with accrued interest as at 9th October 2012 or any balance thereof, and any further interest accruing until payment in full.
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Judicial Review 88 of 2012 [if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]
IN THE MATTER OF:AN APPLICATION FOR LEAVE TO APPLY FOR AN ORDER OF MANDAMUS
AND
IN THE MATTER OF:SECTION 263A OF THE LOCAL GOVERNMENT ACT (CAP.265) AND THE ENABLING PROVISIONS OF THE LAW
BETWEEN
REPUBLIC......................................................................................APPLICANT
-VERSUS-
THE TOWN CLERK,CITY COUNCIL OF NAIROBI……….……..DEFENDANT
EXPARTE
NJAGI WANJERUpractising as NJAGI WANJERU & CO. ADVOCATES
JUDGMENT
The Exparte Applicant (hereinafter referred to as the Applicant) is Njagi Wanjeru, an advocate of the High Court of Kenya practising as such in the firm of Njagi Wanjeru and Company Advocates.
Pursuant to leave granted on 9th October 2012, the Applicant filed a Notice of Motion dated 9th October 2012 seeking an orderof mandamusto compel the Respondent, the Town Clerk of the City of Nairobi to without delay cause to be paid to him all the decretal sums awarded in his favour in various civil suits filed against the Respondent together with interest accruing thereon as at 9th October 2012 or any balance thereof. The Applicant also seeks that the amounts outstanding be paid together with any further interest accruing until payment in full. The civil suits in which the decretal amounts were awarded are indicated on the face of the application.
The application is supported by a statutory statement dated 19th March 2012 and a verifying affidavit sworn by the Applicant on even date and annextures thereto.
Before leave to commence these proceedings was granted, the Respondent was served with the application for leave following court orders issued on 20th March 2012 and entered appearance on 19th April 2012.
However, though duly served with the Notice of Motion on 12th October 2012 as can be seen from the Affidavit of Service sworn by Peter Mwaniki on 29th October 2012, the Respondent did not file any response.
The application is therefore unopposed. The effect of this is that all the depositions made by the Applicant in the verifying affidavit regarding amounts already paid by the Respondent in satisfaction of the decretal amounts, balances outstanding from amounts not paid in full, amounts not paid at all and balances arising from accrued interest on the principal amounts have not been controverted.
It is the Applicant’s case that despite several demands for payment, the Respondent has failed to settle the amounts lawfully due to him and that the Respondent has therefore failed to perform his statutory duty imposed by Section 263 A of the Local Government Act.
Section 263A of the Local Government Act requires the clerk of a Local Authority to pay without delay money awarded in a judgment or order to the person entitled out of the revenue of the Local Authority.
As it is not disputed that the sums specified in Prayer 1 of the application have not been settled to date, it is clear that the Respondent being the clerk of the City Council of Nairobi has failed to perform his statutory duty of causing payment of the sums decreed in HC. Misc.Civil App No.508 of 2007; HC. Misc. Civil App. No.578 of 2007 and HC. Misc. Civil App. No.646 of 2006 to the Applicant in full out of the revenues of the City Council of Nairobi. The Respondent has not given any reason to explain his failure to satisfy the decretal amounts awarded to the Applicant against the City Council of Nairobi.
It is therefore my finding that the Applicant has demonstrated that he is deserving of the order of mandamus as prayed in this case. Consequently, I am satisfied that the Notice of Motion dated 9th October 2012 is merited and it is hereby allowed in terms of Prayer 1.
On the prayer for costs, since the application was filed to enforce payment of taxed costs, I find that it would be just and fair if each party was to bear its own costs. It is so ordered.
DATED, DELIVERED and SIGNEDthis10th day ofDecember 2012.
C.W. GITHUA
JUDGE
In the presence of:
No appearance for Applicant
No appearance for Respondent