[2024] KEIC 1 (KLR)
The court held that there is no legal basis or precedent for committing a Cabinet Secretary to civil jail for the Government's failure to pay a civil debt under a court decree. The Claimant failed to cite any statutory provision or case law supporting such an order, and the court expressed doubt about the propriety...
Source-derived case information.
- Citation
- [2024] KEIC 1 (KLR)
- Parties
- Applicant: Edward Ndombi Ukokhe; Respondent: Attorney-General; Respondent: Permanent Secretary Ministry of Medical Services
- Court
- Industrial Court
- Court Station
- Industrial Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 688 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Urgent Application for Execution of Decree
- Outcome
- Application for ex parte orders declined; directions for service and inter partes hearing issued.
- Judges
- J Rika
- Legal Topics
- Execution of Judgments, Government Liability, Civil Jail, Decree Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Ndombi Ukokhe
Applicant
Attorney-General
Respondent
Permanent Secretary Ministry of Medical Services
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Urgent Application for Execution of Decree
Legal Issues
- 1 Whether the Cabinet Secretary can be arrested and committed to civil jail for failure by the Government to satisfy a court decree.
- 2 Whether the Claimant is entitled to ex parte orders for arrest and committal of the Cabinet Secretary.
- 3 Whether the proper procedure for execution against the Government has been followed.
Ratio Decidendi
The court held that there is no legal basis or precedent for committing a Cabinet Secretary to civil jail for the Government's failure to pay a civil debt under a court decree. The Claimant failed to cite any statutory provision or case law supporting such an order, and the court expressed doubt about the propriety and legality of the relief sought. The court further found that ex parte orders for arrest and committal could not be granted without hearing the Respondents. The proper procedure requires service of the application on the Respondents and an inter partes hearing before any coercive orders can be considered. The application for ex parte orders was therefore declined, and...
Court Disposition
Application for ex parte orders declined; directions for service and inter partes hearing issued.
Orders
- The application shall be served upon the Respondents.
- A hearing date suitable to the court and all parties to be assigned at the registry after the Respondents have filed their responses.
Full Case Text
Judgment text and source record
20 paragraphs
Ukokhe v Attorney-General & another (Cause 688 of 2011) [2024] KEIC 1 (KLR) (7 February 2024) (Ruling)
Neutral citation: [2024] KEIC 1 (KLR)
Republic of Kenya
In the Industrial Court at Nairobi
Cause 688 of 2011
J Rika, J
February 7, 2024
Between
Edward Ndombi Ukokhe
Claimant
and
Attorney-General
1st Respondent
Permanent Secretary Ministry of Medical Services
2nd Respondent
Ruling
1. The Claimant/Decree-holder, seeks orders in his Application, dated 5th February 2024, filed under Certificate of Urgency, that: -a.The Application is certified urgent, and heard ex parte, in the first instance.b.Warrants of arrest to issue against the Cabinet Secretary, Ministry of Health, to show cause why Judgment [on record] delivered on 15th January 2018, and notified on 4th September 2021, in the sum of Kshs. 162,500 should not be paid to the Decree-Holder.c.The Cabinet Secretary Ministry of Health is committed to civil jail, until the decretal sum is paid in full.d.Costs be provided for.
2. The Application is founded on the Affidavit of the Claimant sworn on 5th February 2024. It is also supported by the Certificate of Urgency signed on 5th February 2024, by Learned Counsel for the Claimant, Tom Wachakana.
3. The Claimant explains that he extracted Decree and served the same upon the Respondents. He availed a copy of the Judgment to the Respondents. He served upon the Respondents, Certificate of Order against the Government, issued under Order 29 Rule 3 of the Civil Procedure Rules. There was no compliance on the part of the Respondents.The Court Finds: -a.Judgment on record indicates that the Cause was filed, and Judgment issued, under the Industrial Court of Kenya, not the Employment and Labour Relations Court, as indicated in the Application.b.The Court is very doubtful that a Cabinet Secretary can be arrested and committed to civil jail, for failure by the Government, to satisfy a Decree issued by the Court.c.The Court is not aware of judicial precedent, and the Claimant has cited none, where a Cabinet Secretary in Kenya or in the Commonwealth, was arrested and committed to civil jail, to enforce payment of a civil debt owed by the Government.d.The Claimant has not cited the relevant provisions in the Government Proceedings Act, enabling the Court to commit Cabinet Secretaries to civil jail, to satisfy Decrees issued against the Government.e.It is not clear why the Claimant seeks execution against the Cabinet Secretary, while he names the Permanent Secretary alongside the Attorney-General, as the Respondents, in his Claim.f.The Court is not able to grant ex parte orders as prayed. The Claimant needs to serve his Application on the Respondents, and return to Court to persuade the Court, to arrest and jail the Cabinet Secretary, after hearing all the Parties.It is ordered: -a.The Application shall be served upon the Respondents.b.Hearing date suitable to the Court, and all the Parties, to be assigned at the Registry, after the Respondents have put in their responses.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS, 2020, THIS 7TH DAY OF FEBRUARY 2024. James RikaJudge