[2017] KEHC 2474 (KLR)
The court found that the applicant had obtained judgment and taxed costs against the government, which remain unsatisfied. Since execution against the government cannot proceed through attachment and sale, the only effective remedy is mandamus. The court applied the test of whether the application is arguable and...
Source-derived case information.
- Citation
- [2017] KEHC 2474 (KLR)
- Parties
- Applicant: Shimoni Resorts Limited; Respondent: The Principal Secretary of the Ministry of Lands & Physical Planning; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 191 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Commence Judicial Review Proceedings
- Outcome
- Leave granted to commence judicial review proceedings for mandamus.
- Judges
- BM Eboso
- Legal Topics
- Judicial Review, Mandamus, Government Liability, Execution of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shimoni Resorts Limited
Applicant
The Principal Secretary of the Ministry of Lands & Physical Planning
Respondent
The Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Commence Judicial Review Proceedings
Legal Issues
- 1 Whether the applicant has made out an arguable case for leave to commence judicial review proceedings for an order of mandamus against the government.
- 2 Whether the application for leave is frivolous, vexatious, or hopeless.
- 3 Whether mandamus is the appropriate remedy for enforcing a judgment against the government.
Ratio Decidendi
The court found that the applicant had obtained judgment and taxed costs against the government, which remain unsatisfied. Since execution against the government cannot proceed through attachment and sale, the only effective remedy is mandamus. The court applied the test of whether the application is arguable and not frivolous, vexatious, or hopeless, as established in UWE MEIXNER & ANOR V ATTORNEY GENERAL. The court was satisfied that the applicant's intended motion met this threshold and therefore granted leave to commence judicial review proceedings for mandamus.
Court Disposition
Leave granted to commence judicial review proceedings for mandamus.
Orders
- Leave is granted in terms of prayer 1 of the chamber summons.
- The substantive motion shall be filed and served within 21 days.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC MISC. CASE NO. 191 OF 2017
SHIMONI RESORTS LIMITED …………......................... APPLICANT
VERSUS
THE PRINCIPAL SECRETARY OF THE
MINISTRY OF LANDS & PHYSICAL PLANNING .... 1ST RESPONDENT
THE ATTORNEY GENERAL ………...…...…….………. 2ND RESPONDENT
RULING
I have considered the chamber summons application dated 12/10/2017 through which the ex parte applicant seeks leave of this court to commence proceedings for an order of mandamus directed at the 1st respondent commanding him to pay the ex parte applicant the decretal sum and costs awarded in ELC 961/2012. I have examined the annextures to the verifying affidavit.
Grant or refusal of leave is an exercise of judicial discretion. The test to be applied is whether the ex parte applicant has made out an arguable case [see: UWE MEIXNER & ANOR V ATTORNEY GENERAL, (2005) eKLR].
Secondly, the purpose of the application for leave is to eliminate applications which are frivolous, vexatious or hopeless and to ensure that only those applications disclosing arguable cases proceed for further consideration.
The ex parte applicant herein obtained judgment in April 2016. Its Bill of Costs was taxed in February 2017. It contends that both the decree and certificate of costs have not been satisfied. It is trite law that normal execution proceedings through attachment and sale of assets would not issue against the government. The only efficacious instrument of execution available to a decree holder such as the ex parte applicant herein is the writ of mandamus.
Consequently, I am satisfied that the ex parte applicant’s intended motion is not frivolous, vexatious or hopeless. The ex parte applicant has made out an arguable case. I accordingly grant leave in terms of prayer 1 of the chamber summons. The substantive motion shall be filed and served within 21 days. Mention on 21/11/2017 for further directions.
Dated, signed and delivered at Nairobi on this 16th day of October, 2017.
B M EBOSO
JUDGE