1. The applicant’s application is a motion dated 27 February 2024 seeking the following orders:
“1. This honourable Court do issue an order of mandamus directed at the 1st, 2nd and 3rd respondents jointly or severally, compelling them to pay the ex-parte applicant Kshs. 2,891,104.82 being the decretal sum arising from the matter of chief magistrate's court at Milimani Civil Suit no. 5831 of 2019 as at 26th September, 2022 as furnished in the Certificate of Order.
2) An order of mandamus directed at the 1st, 2ndand 3rd Respondents compelling them to pay the Exparte Applicant Kshs. 191,704 being the taxed costs in the matter of chief magistrate's court at Milimani Civil Suit no. 5831 OF 2019.
3) An order of mandamus directed at the 1st, 2nd and 3rd respondents compelling them to pay interest on prayer 1 and 2 at court rates as provided in the Certificate of Order in the Matter of Chief Magistrate's Court at Milimani Civil Suit no. 5831 of 2019 until payment in full.
4) The said payments be made in full within thirty (90) days from the date of this order, and in default, a Notice to Show Cause be issued against the 2nd Respondent and the 3rd Respondents to Show Cause why they should not be cited and committed to jail for six months for contempt of court;
5) Costs of this application in any event be awarded to the Ex-parte Applicant and be assessed at Kshs. 100,000/=.”
2. The application is based on a statutory statement dated 27 February 2024 and supported by an affidavit sworn by Mr. David Otieno. It is also based on sections 1A, 1B, 3, 3A, 21 of the Civil Procedure Act, cap. 21 and Order 29, 51 Rule 1 of the Civil Procedure Rules, 2010.
3. According to Mr. Otieno, the applicant was awarded the sum of Kshs. 2,630,767/= in Milimani Chief Magistrate's Court at Milimani Civil Suit No. 5831 of 2019 in a judgment delivered on 26 November 2021. A decree from the judgment was subsequently extracted, more particularly on 26 September 2022 and served on the judgment debtor on 5 June 2023. On 13 December, 2023 the applicant served the respondents with the Certificate of Order against the Government, the Decree, Certificate of Costs, and copy of the judgement.
4. As at the time the applicant filed the instant application, the respondents had not satisfied the decree and paid the applicant. It is for this reason that the applicant seeks the order of mandamus to compel the respondents to pay.
5. When the matter came for mention on 24 June 2024, Mr. Achola, the learned counsel for the respondents informed court that no response had been filed to the application because he was yet to get instructions from his clients. The court adjourned the hearing of the case to 23 July 2024. On this particular date, the respondents’ counsel did not appear and neither had any response been filed. Thus, the application proceeded ex parte, unopposed.
6. It is not in doubt that execution or attachment of property is one of the ways through which decrees or orders are enforced. But the Government is protected from such process of execution or attachment or other similar process in enforcement of decrees or orders. This protection is encapsulated in section 21 of the Government Proceedings Act, in particular, section 21(4) thereof. That section reads as follows:
21. Satisfaction of orders against the Government
(1) Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:
Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.
(2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.
(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:
Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.
(4) Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.
(5) This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.
7. In the face of this protection from execution or attachment, the only available route open to the applicant is to compel the County Government of Nairobi’s accounting officer to perform his statutory duty under section 21(3) of the Act and pay what has been decreed as due and owing to the applicant. In other words, only the order of mandamus would be the appropriate order in the circumstances.
8. According to Halsbury's Laws of England/JUDICIAL REVIEW (VOLUME 61 (2010) 5TH EDITION)/5. JUDICIAL REMEDIES/ (1) INTRODUCTION paragraph 689:
“A mandatory order is, in form, a command issuing from the High Court, directed to any person, corporation or inferior tribunal requiring him, or them, to do some particular thing specified in the command which appertains to his or their office and is in the nature of a public duty (See Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 1 All ER 694, HL). The breach of duty may be a failure to exercise a discretion, or a failure to exercise it according to proper legal principles.”
This is reiterated in paragraph 703 which states:
“A mandatory order is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or it to do some particular thing specified in the order which appertains to his or its office and is in the nature of a public duty… the purpose of a mandatory order is to compel the performance of a public duty, whether of an inferior court or tribunal to exercise its jurisdiction, or that of an administrative body to fulfil its public law obligations. It is a discretionary remedy.”
9. And with particular reference to public officers who, like in the instant case, fail to perform their public duty, paragraph 706 is clear that a mandamus order may be issued to compel them to carry out the duty. It reads as follows:
“706. Public duties by government officials.
If public officials or public bodies fail to perform any public duty with which they have been charged, a mandatory (mandamus) order may be made to compel them to carry out the duty (See R v Metropolitan Police Comr, ex p Blackburn (No 3) [1973] QB 241, [1973] 1 All ER 324, CA; R v London Transport Executive, ex p GLC [1983] QB 484, [1983] 2 All ER 262, DC.)”
10. Besides service of the certificate of order against the Government, it is not contested that the applicant has complied with the rest of the conditions prescribed in section 21 of the Government Proceedings Act. To be precise, there is no evidence that the applicant defaulted in any other step prescribed under this provision of the law as to disentitle it to the order of mandamus.
11. A demand for payment having been made and the respondents having failed to pay, no other evidence is required to demonstrate that the respondents have failed to perform a public duty with which they are charged under section 21(3) of the Government Proceedings Act. A mandamus order would properly issue in such circumstances.
12. Accordingly, I allow the applicant’s application to the extent that the order of mandamus is hereby granted compelling the respondents, jointly or severally, to pay the applicant in terms of the certificate of order against the government issued on 29 November 2022 in Milimani Chief Magistrates Court Civil Suit No. 5831 of 2019. The applicant will also have costs of the application. It is so ordered.
“1. This honourable Court do issue an order of mandamus directed at the 1st, 2nd and 3rd respondents jointly or severally, compelling them to pay the ex-parte applicant Kshs. 2,891,104.82 being the decretal sum arising from the matter of chief magistrate's court at Milimani Civil Suit no. 5831 of 2019 as at 26th September, 2022 as furnished in the Certificate of Order.
2) An order of mandamus directed at the 1st, 2ndand 3rd Respondents compelling them to pay the Exparte Applicant Kshs. 191,704 being the taxed costs in the matter of chief magistrate's court at Milimani Civil Suit no. 5831 OF 2019.
3) An order of mandamus directed at the 1st, 2nd and 3rd respondents compelling them to pay interest on prayer 1 and 2 at court rates as provided in the Certificate of Order in the Matter of Chief Magistrate's Court at Milimani Civil Suit no. 5831 of 2019 until payment in full.
4) The said payments be made in full within thirty (90) days from the date of this order, and in default, a Notice to Show Cause be issued against the 2nd Respondent and the 3rd Respondents to Show Cause why they should not be cited and committed to jail for six months for contempt of court;
5) Costs of this application in any event be awarded to the Ex-parte Applicant and be assessed at Kshs. 100,000/=.”
2. The application is based on a statutory statement dated 27 February 2024 and supported by an affidavit sworn by Mr. David Otieno. It is also based on sections 1A, 1B, 3, 3A, 21 of the Civil Procedure Act, cap. 21 and Order 29, 51 Rule 1 of the Civil Procedure Rules, 2010.
3. According to Mr. Otieno, the applicant was awarded the sum of Kshs. 2,630,767/= in Milimani Chief Magistrate's Court at Milimani Civil Suit No. 5831 of 2019 in a judgment delivered on 26 November 2021. A decree from the judgment was subsequently extracted, more particularly on 26 September 2022 and served on the judgment debtor on 5 June 2023. On 13 December, 2023 the applicant served the respondents with the Certificate of Order against the Government, the Decree, Certificate of Costs, and copy of the judgement.
4. As at the time the applicant filed the instant application, the respondents had not satisfied the decree and paid the applicant. It is for this reason that the applicant seeks the order of mandamus to compel the respondents to pay.
5. When the matter came for mention on 24 June 2024, Mr. Achola, the learned counsel for the respondents informed court that no response had been filed to the application because he was yet to get instructions from his clients. The court adjourned the hearing of the case to 23 July 2024. On this particular date, the respondents’ counsel did not appear and neither had any response been filed. Thus, the application proceeded ex parte, unopposed.
6. It is not in doubt that execution or attachment of property is one of the ways through which decrees or orders are enforced. But the Government is protected from such process of execution or attachment or other similar process in enforcement of decrees or orders. This protection is encapsulated in section 21 of the Government Proceedings Act, in particular, section 21(4) thereof. That section reads as follows:
21. Satisfaction of orders against the Government
(1) Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:
Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.
(2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.
(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:
Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.
(4) Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.
(5) This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.
7. In the face of this protection from execution or attachment, the only available route open to the applicant is to compel the County Government of Nairobi’s accounting officer to perform his statutory duty under section 21(3) of the Act and pay what has been decreed as due and owing to the applicant. In other words, only the order of mandamus would be the appropriate order in the circumstances.
8. According to Halsbury's Laws of England/JUDICIAL REVIEW (VOLUME 61 (2010) 5TH EDITION)/5. JUDICIAL REMEDIES/ (1) INTRODUCTION paragraph 689:
“A mandatory order is, in form, a command issuing from the High Court, directed to any person, corporation or inferior tribunal requiring him, or them, to do some particular thing specified in the command which appertains to his or their office and is in the nature of a public duty (See Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 1 All ER 694, HL). The breach of duty may be a failure to exercise a discretion, or a failure to exercise it according to proper legal principles.”
This is reiterated in paragraph 703 which states:
“A mandatory order is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or it to do some particular thing specified in the order which appertains to his or its office and is in the nature of a public duty… the purpose of a mandatory order is to compel the performance of a public duty, whether of an inferior court or tribunal to exercise its jurisdiction, or that of an administrative body to fulfil its public law obligations. It is a discretionary remedy.”
9. And with particular reference to public officers who, like in the instant case, fail to perform their public duty, paragraph 706 is clear that a mandamus order may be issued to compel them to carry out the duty. It reads as follows:
“706. Public duties by government officials.
If public officials or public bodies fail to perform any public duty with which they have been charged, a mandatory (mandamus) order may be made to compel them to carry out the duty (See R v Metropolitan Police Comr, ex p Blackburn (No 3) [1973] QB 241, [1973] 1 All ER 324, CA; R v London Transport Executive, ex p GLC [1983] QB 484, [1983] 2 All ER 262, DC.)”
10. Besides service of the certificate of order against the Government, it is not contested that the applicant has complied with the rest of the conditions prescribed in section 21 of the Government Proceedings Act. To be precise, there is no evidence that the applicant defaulted in any other step prescribed under this provision of the law as to disentitle it to the order of mandamus.
11. A demand for payment having been made and the respondents having failed to pay, no other evidence is required to demonstrate that the respondents have failed to perform a public duty with which they are charged under section 21(3) of the Government Proceedings Act. A mandamus order would properly issue in such circumstances.
12. Accordingly, I allow the applicant’s application to the extent that the order of mandamus is hereby granted compelling the respondents, jointly or severally, to pay the applicant in terms of the certificate of order against the government issued on 29 November 2022 in Milimani Chief Magistrates Court Civil Suit No. 5831 of 2019. The applicant will also have costs of the application. It is so ordered.