[2018] KEHC 7075 (KLR)
The court found that the application for mandamus was fatally defective because it was not brought against the proper party, namely the County Executive in Charge of Finance (the accounting officer) as required by the County Governments Act. The decree was also not served on the said officer. As a result, the court...
Source-derived case information.
- Citation
- [2018] KEHC 7075 (KLR)
- Parties
- Applicant: Trans African Motors Limited; Respondent: County Secretary, County Government of Vihiga
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 1 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review by Way of Mandamus
- Outcome
- application dismissed
- Judges
- TW Cherere
- Legal Topics
- Judicial Review, Mandamus, Government Liability, Enforcement of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trans African Motors Limited
Applicant
County Secretary, County Government of Vihiga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Apply for Judicial Review by Way of Mandamus
Legal Issues
- 1 Whether the applicant is entitled to an order of mandamus compelling the respondent to pay the decretal sum, costs, and interest as per the decree in Kisumu Chief Magistrate’s Court Civil Case No. 32 of 2017.
- 2 Whether the application has been brought against the proper party as required by law.
Ratio Decidendi
The court found that the application for mandamus was fatally defective because it was not brought against the proper party, namely the County Executive in Charge of Finance (the accounting officer) as required by the County Governments Act. The decree was also not served on the said officer. As a result, the court declined to grant the orders sought, emphasizing that judicial review applications must be directed at the person legally obligated to comply with the order, and failure to do so is fatal to the application.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 29th January, 2018 is disallowed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISCELLANEOUS APPLICATION NO. 1 OF 2018
IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY WAY OF MANDAMUS
AND
IN THE MATTER OF THE COUNTY GOVERNMENT OF VIHIGA
AND
IN THE MATTER OF THE GOVERNMENT PROCEEDINGS ACT, CAP 40 LAWS OF KENYA
BETWEEN
TRANS AFRICAN MOTORS LIMITED.......................APPLICANT
VERSUS
COUNTY SECRETARY, COUNTY
GOVERNMENT OF VIHIGA.......................................REPONDENT
RULING
Introductions
1. By a Notice of Motion dated 29th January, 2018, the ex parte applicant herein, seeks the following orders:
1. That leave be granted to the applicant of Mandamus directed to the respondent to pay to the applicant the sum of Kshs. 15,040,014/- being the decretal amount in Kisumu Chief Magistrate’s Court Civil Case No. 32 of 2017 together with Kshs. 550,160/- being the certified costs and interest thereon at 14% per annum from the date of judgment, 20th September, 2017 until payment in full.
2. That costs provided for
Application
2. According to the applicant, he obtained a decree in Kisumu Chief Magistrate’s Court Civil Case No. 32 of 2017 on 8th December, 2017 requiring the respondent to pay him Kshs. 15,040,014/- Chassis No. 8FADO 4365, Engine No. 1515 C001286 and Low Loader OLHR048ZE with complete tools, spare tyres, fifth wheel, digital governors fitted winch together with costs taxed at Kshs. 550,160/- and interest thereon at 14% per annum from the date of judgment, 20th September, 2017
3. Moses Munuang’o, advocate for the applicant in his supporting affidavit sworn on 29th January, 2018 avers that despite extracting the decree and certificate of costs and serving the same upon the County Secretary of Vihiga County Government on 13th December, 2017, the respondent has failed to settle the matter
4. The issue for determination is whether this Court ought to grant the order sought herein.
5. Under the County Governments Act No. 17 of 2012, the County Executive in Charge of Finance or by whatever other name the officer may be described, is the one under obligation to pay funds, in the capacity of the accounting officer.
6. It must always be remembered that a judicial review application is neither a criminal case nor a civil suit hence the application ought to be brought against the person who is bound to comply with the orders sought therein (SeeRepublic v County Chief Officer, Finance & Economic Planning, Nairobi City County Ex Parte Stanley Muturi [2016] eKLR).In this case the Respondent ought to have been the Accounting Officer.
7. The court record shows that the decree was neither served on the County Executive in Charge of Finance nor has the suit been brought against the said officer.
Order
8. In the result I disallow the Notice of Motion dated 29th January, 2018 with no order for costs.
DATED, DELIVERED AND SIGNED THIS10TH DAY OFMAY2018
T. W. CHERERE
JUDGE
In the presence of-
Court Assistant - Felix
Petitioner - N/A
Respondent - N/A