[2019] KEHC 4651 (KLR)
The court found that the applicant had obtained a valid decree and certificate of costs against the respondent, which remained unsatisfied despite the respondent's opportunity to pay and the absence of opposition to the application. The statutory duty to satisfy court decrees against government entities is...
Source-derived case information.
- Citation
- [2019] KEHC 4651 (KLR)
- Parties
- Applicant: Wilfred Isaboke Ondieki; Respondent: Kisii County Government
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 76 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Order of Mandamus
- Outcome
- Application for order of mandamus granted.
- Legal Topics
- Judicial Review, Mandamus Orders, Public Officer Liability, Decree Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Isaboke Ondieki
Applicant
Kisii County Government
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Order of Mandamus
Legal Issues
- 1 Whether an order of mandamus should issue to compel the Kisii Chief Officer in charge of Finance and Economic Planning to satisfy the decree and certificate of costs issued in Kisii CMCC No. 502 of 2015.
- 2 Whether the applicant is entitled to interest and costs as claimed.
Ratio Decidendi
The court found that the applicant had obtained a valid decree and certificate of costs against the respondent, which remained unsatisfied despite the respondent's opportunity to pay and the absence of opposition to the application. The statutory duty to satisfy court decrees against government entities is enforceable by mandamus. The court held that the applicant was entitled to an order of mandamus compelling the Kisii Chief Officer in charge of Finance and Economic Planning to pay the sum of Kshs. 546,775/- together with interest at court rates (14%) from the date of filing the present suit until payment in full. The court further assessed the advocate's costs at Kshs. 50,000/-, making...
Court Disposition
Application for order of mandamus granted.
Orders
- An order of mandamus is issued compelling the Kisii Chief Officer in charge of Finance and Economic Planning to pay the applicant Kshs. 546,775/- together with interest at court rates (14%) from the date of filing the present suit until payment in full.
- Advocate's costs are assessed at Kshs. 50,000/-, making the total amount payable Kshs. 596,775/-.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISII
MISC. APPLICATION NO. 76 OF 2018
WILFRED ISABOKE ONDIEKI....................APPLICANT
VERSUS
KISII COUNTY GOVERNMENT..............RESPONDENT
RULING
1. Judgment was entered for the Applicant in Kisii CMCC No. 502 of 2015 for Kshs. 258,000/- on the 24th July 2015. The Applicant subsequently obtained a decree and certificate of costs dated 27th September 2018 and 27th September 2018 respectively. In an application for execution of the decree the applicant sought the sum of Kshs. 546,775/- which comprises, the sum awarded in the decree Kshs. 264,020, interest from 9/11/2015 todate ( date of application) Kshs. 156,000/-, further court fees Kshs. 16880/- and costs Kshs. 109875/- totalling Kshs. 546,775.
2. On the 7/12/2018 the Applicant filed an application dated the 7/12/2018 seeking leave to file an application for Mandamus directed against Kisii County Chief in charge of Finance and Economic Planning to compel him to honour the Decree and Certificate of Costs issued on the 27/9/2018 in Kisii CMCC No. 502 of 2015 to pay the exparte applicant a sum of Kshs. 490,775/= together with interest thereon at the rate of 12% till payment in full. Leave was granted and the applicant filed the Notice of Motion dated the 14/12/ 2018 seeking an order of Mandamus to compel the Kisii Chief Officer in charge of Finance and Economic Planning to honor the Decree and Certificate of Costs issued on the 27/9/2018 in Kisii CMCC No. 502 of 2015 and to pay the exparte Applicant herein the sum of Kshs. 490,775/- together with further costs and interest thereon at the rate of 12% till payment in full failing which the said officer aforesaid be committed to civil jail for a term of six months. That costs be borne by the applicant. The application is grounded on the grounds stated on the face of the application and the supporting affidavit of the Applicant.
3. On the 6/3/2019 parties recorded a consent that the Respondent be allowed 14 days to pay the sum owing to the Applicant in default of which the Minister of Finance to be served with the Notice to Show Cause (NTSC) as to why he should not be committed to civil jail. The amount has not been paid to date. In a further affidavit dated the 6/6/2019 Counsel for the Applicant sought to clarify the amount indicated in the NTSC. He avers that the amount was for Kshs. 490,775/- instead of Kshs. 546,775/- from the Lower Court and that he requested the Lower Court to enter the correct amount Kshs. 546. 775/-. That he added a sum of Kshs. 105,820/- to make it Kshs. 652595/-. That the sum of Kshs. 105,820/- are the costs of the High Court being; Advocates fees of Kshs. 50,000/-, interest on the sum of Kshs. 546,775. 000 from the time of filing the present suit (712/2018) at 16% p. a Kshs. 43,760/- and attendances for 6 days on various dates Kshs. 2300/-, Kshs.15000/- per hour, service of documents Kshs. 6000/- and Court fees Kshs. 3140/-. Counsel claims that the sum of Kshs. 105820/- is reasonable and is even below what is charged. That the amount of Kshs. 546,775/- from the Lower Court plus Kshs. 105,820/- being costs in the High Court totals Kshs. 652595/- all inclusive.
4. On the 10/6/2019 Mr. Mosota for the Respondent indicated that they did not oppose the application and that they had agreed that the Applicant’s Counsel would take a sum of Kshs. 50,000/-. He asked the court to look at the element of interest.
5. I have considered the application dated the 14th December 2018, basically it is not opposed by the Respondent. The exparte Applicant seeks orders of Mandamus to compel the Kisii Chief Officer in charge of Finance and Economic planning to honor the Decree and Certificate of Costs issued on the 27. 9.2018 in Kisii CMCC No. 502 of 2015. Since the application has not been opposed I grant the order sought by the exparte Applicant of mandamus to compel the Kisii Chief Officer in charge of Finance and Economic Planning to honor the Decree and Certificate of Costs issued on the 27/9/2018 in Kisii CMCC No. 502 of 2015. The amount owing which shall be paid to the exparte Applicant is Kshs. 546,775/- together with interest at court rates at 14% from the date of filing the present suit until payment in full. The Advocates costs are assessed at Kshs. 50,000/-, plus Kshs. 546,775/- the amount the Respondent shall pay is Kshs. 596,775/- within 14 days from date of the ruling in default the accounting officer of the Kisii County Government shall be committed to civil jail for a period of 6 months at the exparte applicant’s expense. Cost of the application to the Applicant.
Dated, signed and delivered at Kisiion the 12th day of June 2019.
R.E.OUGO
JUDGE
In the presence;
Mr. Okenye For the Exparte Applicant
Respondent Absent
Rael Court clerk