[2017] KEHC 2960 (KLR)
The court found that the sums claimed by the ex parte Applicant were due and arose from lawful judicial processes, which the Respondents admitted. The Respondents' failure to pay the decretal sum, despite being served with the certificate of order against the government, constituted wrongful inaction. The court held...
Source-derived case information.
- Citation
- [2017] KEHC 2960 (KLR)
- Parties
- Applicant: Suryakant Mohanlal Savani; Respondent: The Hon. Attorney-General; Respondent: The Principal Secretary, Commerce & Tourism, Ministry of Tourism
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 15 of 2017
- Procedural Posture
- Judicial Review / Ruling on Notice of Motion for Mandamus
- Outcome
- Application allowed. Order of mandamus issued as prayed with costs to the ex parte Applicant.
- Judges
- DO Ogembo
- Legal Topics
- Judicial Review, Mandamus, Enforcement of Judgments, Government Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Suryakant Mohanlal Savani
Applicant
The Hon. Attorney-General
Respondent
The Principal Secretary, Commerce & Tourism, Ministry of Tourism
Respondent
Procedural Posture
Judicial Review / Ruling on Notice of Motion for Mandamus
Legal Issues
- 1 Whether the ex parte Applicant is entitled to an order of mandamus to compel the Respondents to pay the decretal sum awarded in CMCC No. 772 of 2016.
- 2 Whether the Respondents' failure to pay the decretal sum constitutes wrongful inaction justifying the issuance of mandamus.
Ratio Decidendi
The court found that the sums claimed by the ex parte Applicant were due and arose from lawful judicial processes, which the Respondents admitted. The Respondents' failure to pay the decretal sum, despite being served with the certificate of order against the government, constituted wrongful inaction. The court held that mandamus is the appropriate remedy to compel the Respondents to perform their statutory duty to pay the decretal sum, costs, and interest. The court emphasized that the prerogative remedy of mandamus is designed to address such failures by public authorities and that the Applicant, as a successful litigant, is entitled to enforcement of the judgment. Accordingly, the...
Court Disposition
Application allowed. Order of mandamus issued as prayed with costs to the ex parte Applicant.
Orders
- An order of mandamus is issued compelling the Principal Secretary, Commerce & Tourism, Ministry of Tourism to pay the ex parte Applicant the decretal sum of Kshs. 2,043,052.60 arising from Judgment in CMCC No. 772 of 2016, with interest at 14% until payment in full.
- The Respondents shall pay the costs of this motion to the ex parte Applicant.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
JUDICIAL REVIEW NO. 15 OF 2017
IN THE MATTER OF: APPLICATION BY SURYAKANT MOHANLAL SAVANI FOR LEAVE TO APPLY FOR JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF MANDAMUS
AND
IN THE MATTER OF: AN APPLICATION FOR JUDICAL REVIEW FOR ORDERS OF MANDAMUS TO COMPEL THE RESPONDENT TO PAY THE EX PARTE APPLICANT THE DECRETAL SUM OF KSHS. 2,043,056. 20 WITH INTEREST AT 14% UNTIL PAYMENT IN FULL ARISING FROM JUDGMENT IN CMCC NO. 772 OF 2016 MOMBASA
IN THE MATTER OF: THE CIVIL PROCEDURE ACT AND THE LAW REFORM ACT
BETWEEN
SURYAKANT M. SAVANI……........…EX PARTE APPLICANT
VERSUS
1. THE HON. ATTORNEY-GENERAL
2. THE PRINCIPAL SECRETARY, COMMERCE & TOURISM,
MINISTRY OF TOURISM…………..........…..RESPONDENTS
RULING OF THE COURT
The Application
1. By the Notice of Motion application dated and filed herein on 12rh May, 2017 and brought under Order 53, rules 3 and 4 of the Civil Procedure Rules, and Sections 8 and 8 of the Law Reform Act, the ex parte Applicant prays for an order of mandamus to issue compelling the Principal Secretary Commerce and Tourism, Ministry of Tourism, the 2nd Respondent, to pay the ex parte Applicant the decretal sum of Kshs. 2,043,052. 60 arising from Judgment in CMCC No. 772 of 2016 in Mombasa. The ex parte Applicant also prays for the costs of the motion.
2. The motion is supported by the statement of the ex parte Applicant filed on 2nd May, 2017 and a verifying affidavit by the ex parte Applicant sworn on 26th April, 2017 both in support of the Chamber Summons dated 26th April, 2017.
3. The ex parte Applicant’s case is that he filed suit on 20th April, 2016 against the Respondents at the Chief Magistrate’s Court, Mombasa in CMCC No. 772 of 2016. The Respondents after having been duly served with summons and pleadings entered appearance but failed to file defence. The ex parte Applicant lodged an application dated 9th June, 2016 in court against the Respondents seeking entry of Judgment against the Respondents as they had no credible defence to the ex parte Applicant’s claim. On 15th September, 2016, the court delivered its Ruling and granted the ex parte Applicant’s prayers as set out in the application dated 9th June, 2016. The Respondents did not appeal nor seek to review the Ruling that the court delivered on 15th September, 2016. The ex parte Applicant duly extracted the decree for the decrial sum of Kshs. 1,809,027. 60 together with the certificate of stated costs of Kshs. 169,025/=. The court then proceeded to issue to the ex parte Applicant a Certificate of Order against the government which was duly served on the Respondents by the ex parte Applicant. Despite having been served with the Certificate of Order against the government directing the Respondents to pay the decretal amount and costs together with interest until payment in full, the Respondents have neglected and/or refused to pay the stated amounts thus rendering this Judicial Review proceedings necessary. The ex parte Applicant has suffered loss and continues to suffer loss as the Respondents have refused to satisfy the Applicant’s claim. The ex parte Applicant being a successful litigant believes it is entitled to the fruits of his Judgment and the Respondents’ actions of refusing to pay the aforestated amounts is contrary to the above principle.
The Response
4. The Respondents have not opposed the motion in any way. When the matter came up for hearing inter partes Mr. Wafula for the ex parte Applicant submitted that he relied fully on the application, while M/S Kiti for the Respondents submitted that while the Respondents admitted the claim in the motion the only issue is that of payment which takes time to effect.
The Determination
5. I have carefully considered the motion. It is not in dispute that the sums claimed by the ex parte Applicant are due. The same is as a result of lawful processes now clearly admitted, and also forms part of the record herein. This court notes that the prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities of all kinds. Like other prerogative remedies, it is normally granted on the application of a private litigant, thought it may equally well be used by one public authority against another. The commonest employment of mandamus is as a weapon in the hands of the ordinary citizen, when a public authority fails to do its duty. Certiorari and prohibition deal with wrongful action, while mandamus deals with wrongful inaction. In this case the wrongful inaction by the 2nd Respondent will attract the remedy of mandamus which is hereby issued.
6. In the upshot the motion dated and filed herein on 12th May, 2017 by the ex parte Applicant is allowed as prayed with costs to the ex parte Applicant.
Orders accordingly.
Dated, Signed and Delivered in Mombasa this 5th day of October, 2017.
E. K. O. OGOLA
JUDGE
In the presence of:
Mr. Ngare for 1st and 2nd Respondent
No Appearance for Applicant
Mr. Kaunda Court Assistant