1. The application before court is a motion dated 28 September 2023. It is expressed to be brought under sections 8 and 9 of the Law Reform Act, cap. 26 and Order 53 of the Civil Procedure Rules. The main prayer in the motion is couched as follows:
“a. The Honourable Court be pleased to issue and hereby issues an order of mandamus compelling the respondents herein, jointly and severally, to pay to the applicant herein in the sum of Kshs. 51, 156, 200.30 together with interest thereon at court rates pursuant to the judgment handed down and decree extracted in High Court Civil Case Suit No. 2451 of 1988”
2. The applicant also seeks an order for costs.
The application is based on a statutory statement dated 12 November 2021 and an affidavit verifying facts relied upon sworn on even date by Dr.Rajendra Singh Gohil.
3. According to Dr. Gohil, he obtained judgment in High Court Civil Suit No. 2451 of 1998 on 18 December 2009. Unfortunately, the court file went missing soon thereafter as a result of which a new file was reconstructed in 2014. The decree was then extracted on 5 February 2016 and served upon the 1st respondent.
4. On 19 September 2018, the applicant’s advocates wrote to the 1st respondent demanding payment of the decretal sum. The demand was served upon the two respondents on the same date.
5. On 12 June 2020 a certificate of order of against the Government was issued. Again, it was served on the respondents on 17 August 2020. As a reminder, the certificate was again sent to the two respondents on 3 June 2021.
6. The decretal sum has not been paid and so the applicant seeks an order of mandamus to compel the respondents to pay. The respondent did not respond to the application and so the applicant asked the court to consider the application unopposed and grant the order for mandamus.
7. I will proceed on this understanding that the applicant’s claim is not contested. The claim is as captured in the certificate of order against government issued in this Honourable Court’s Civil Case No. 2451 of 1998on 12 June 2020. The amount outstanding as at that date is indicated in the certificate to be Kshs. 17,379,041/=. It remains unsettled to date.
8. Considering that there is no response to the applicant’s application, no particular reason has been preferred why the amount has not been settled.
9. Section 21 of the Government Proceedings Act generally deals with the manner and procedure on enforcement of orders and decrees against Government. This 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.
10. There is sufficient evidence on record, and there is no suggestion to the contrary, that Attorney General was served with the certificate of order against the Government. Service of the certificate upon the Attorney General is consistent with section 21(2) of the Government Proceedings Act.
11. There is also evidence that the same certificate was brought to the 1st respondent’s attention by the applicant on more than one occasion. In response to the certificate, the 1st respondent responded as follows:
“20th August, 2020
Our Ref: KRA/LS&BC/C&E/252
Kariuki Muigua & Advocates,
Pioneer Assurance House,
Moi Avenue,
Nairobi
RE: NAIROBI H.C.C.C NO. 2451 OF 1998: RAJENDRA SINGH GOHIL –VS-COMMISSIONER OF CUSTOMS AND ANOTHER
Your letter dated 17th August 2020(copy attached) to the Commissioner General on the above matter has been presented to me for reply.
Please note that from the previous correspondence exchanged (copies attached) with your firm on this matter it was made clear to you that this case is in the hands of the Hon. Attorney General for handling.
Kindly liaise with the office of the Hon. Attorney General on the same.
Yours faithfully,
Signed
P.M. Mathuku
Commissioner Legal Services & Board Co-ordination
/Encl.”
12. When the 1st respondent was sent a reminder, he stood his ground and responded to the applicant’s advocates and stated as follows:
“We refer to your letter of 3rd June, 2021.
We wish to reiterate the contents of our letter to your firm dated 20th August, 2020 (copy attached).
13. The two letters were copied to the Attorney General.
So, it is apparent that the certificate of order against Government was brought to the attention of the respondents.
14. In the absence of any reason or any valid reason why the applicant’s decree cannot be settled, there is every reason to compel the 1st respondent, by way of mandatory or mandamus order, to pay.
The order of mandamus would be the only available means to compel the 1st respondent to pay because the Government is protected from such process of execution or other similar process in enforcement of decrees or orders by section 21(4) of the Government Proceedings Act.
15. In the face of this protection from execution or attachment, the only available route open to the applicant is to compel the respondent 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 under the circumstances.
16. 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.”
17. 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.”
18. And with particular reference to public officers who, like in the instant case, fail to perform their 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.)”
19. The applicant has demonstrated, and it is not in dispute, that it duly extracted a certificate of order against government and that the same was duly served not only upon the Attorney General but was also brought to the 1st respondent’s attention. More importantly, there is no suggestion that the applicant has defaulted in any step prescribed under section 21 of the Act as to disentitle him to the order of mandamus.
20. A demand for payment having been made, and the 1st respondent having failed to pay, no other evidence is required to demonstrate that the respondent has failed to perform a public duty with which he is charged under section 21(3) of the Government Proceedings Act. A mandamus order would properly issue in such circumstances.
21. Accordingly, I hereby allow the applicant’s motion dated 28 September 2023 to the extent that the order of mandamus is hereby issued compelling 1st respondent to pay the applicant the decretal sum as captured in the certificate of order against government issued in High Court Civil Case No. 2451 of 1998 issued on 12 June 2020. Payment of any arrears or interest that may be due will be subjection to section 4(4) of the Limitation of Actions Act cap. 22. This section provides as follows:
4.(4) An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.
22. Considering that the application is not opposed, I make no order as to costs. It is so ordered.
“a. The Honourable Court be pleased to issue and hereby issues an order of mandamus compelling the respondents herein, jointly and severally, to pay to the applicant herein in the sum of Kshs. 51, 156, 200.30 together with interest thereon at court rates pursuant to the judgment handed down and decree extracted in High Court Civil Case Suit No. 2451 of 1988”
2. The applicant also seeks an order for costs.
The application is based on a statutory statement dated 12 November 2021 and an affidavit verifying facts relied upon sworn on even date by Dr.Rajendra Singh Gohil.
3. According to Dr. Gohil, he obtained judgment in High Court Civil Suit No. 2451 of 1998 on 18 December 2009. Unfortunately, the court file went missing soon thereafter as a result of which a new file was reconstructed in 2014. The decree was then extracted on 5 February 2016 and served upon the 1st respondent.
4. On 19 September 2018, the applicant’s advocates wrote to the 1st respondent demanding payment of the decretal sum. The demand was served upon the two respondents on the same date.
5. On 12 June 2020 a certificate of order of against the Government was issued. Again, it was served on the respondents on 17 August 2020. As a reminder, the certificate was again sent to the two respondents on 3 June 2021.
6. The decretal sum has not been paid and so the applicant seeks an order of mandamus to compel the respondents to pay. The respondent did not respond to the application and so the applicant asked the court to consider the application unopposed and grant the order for mandamus.
7. I will proceed on this understanding that the applicant’s claim is not contested. The claim is as captured in the certificate of order against government issued in this Honourable Court’s Civil Case No. 2451 of 1998on 12 June 2020. The amount outstanding as at that date is indicated in the certificate to be Kshs. 17,379,041/=. It remains unsettled to date.
8. Considering that there is no response to the applicant’s application, no particular reason has been preferred why the amount has not been settled.
9. Section 21 of the Government Proceedings Act generally deals with the manner and procedure on enforcement of orders and decrees against Government. This 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.
10. There is sufficient evidence on record, and there is no suggestion to the contrary, that Attorney General was served with the certificate of order against the Government. Service of the certificate upon the Attorney General is consistent with section 21(2) of the Government Proceedings Act.
11. There is also evidence that the same certificate was brought to the 1st respondent’s attention by the applicant on more than one occasion. In response to the certificate, the 1st respondent responded as follows:
“20th August, 2020
Our Ref: KRA/LS&BC/C&E/252
Kariuki Muigua & Advocates,
Pioneer Assurance House,
Moi Avenue,
Nairobi
RE: NAIROBI H.C.C.C NO. 2451 OF 1998: RAJENDRA SINGH GOHIL –VS-COMMISSIONER OF CUSTOMS AND ANOTHER
Your letter dated 17th August 2020(copy attached) to the Commissioner General on the above matter has been presented to me for reply.
Please note that from the previous correspondence exchanged (copies attached) with your firm on this matter it was made clear to you that this case is in the hands of the Hon. Attorney General for handling.
Kindly liaise with the office of the Hon. Attorney General on the same.
Yours faithfully,
Signed
P.M. Mathuku
Commissioner Legal Services & Board Co-ordination
/Encl.”
12. When the 1st respondent was sent a reminder, he stood his ground and responded to the applicant’s advocates and stated as follows:
“We refer to your letter of 3rd June, 2021.
We wish to reiterate the contents of our letter to your firm dated 20th August, 2020 (copy attached).
13. The two letters were copied to the Attorney General.
So, it is apparent that the certificate of order against Government was brought to the attention of the respondents.
14. In the absence of any reason or any valid reason why the applicant’s decree cannot be settled, there is every reason to compel the 1st respondent, by way of mandatory or mandamus order, to pay.
The order of mandamus would be the only available means to compel the 1st respondent to pay because the Government is protected from such process of execution or other similar process in enforcement of decrees or orders by section 21(4) of the Government Proceedings Act.
15. In the face of this protection from execution or attachment, the only available route open to the applicant is to compel the respondent 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 under the circumstances.
16. 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.”
17. 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.”
18. And with particular reference to public officers who, like in the instant case, fail to perform their 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.)”
19. The applicant has demonstrated, and it is not in dispute, that it duly extracted a certificate of order against government and that the same was duly served not only upon the Attorney General but was also brought to the 1st respondent’s attention. More importantly, there is no suggestion that the applicant has defaulted in any step prescribed under section 21 of the Act as to disentitle him to the order of mandamus.
20. A demand for payment having been made, and the 1st respondent having failed to pay, no other evidence is required to demonstrate that the respondent has failed to perform a public duty with which he is charged under section 21(3) of the Government Proceedings Act. A mandamus order would properly issue in such circumstances.
21. Accordingly, I hereby allow the applicant’s motion dated 28 September 2023 to the extent that the order of mandamus is hereby issued compelling 1st respondent to pay the applicant the decretal sum as captured in the certificate of order against government issued in High Court Civil Case No. 2451 of 1998 issued on 12 June 2020. Payment of any arrears or interest that may be due will be subjection to section 4(4) of the Limitation of Actions Act cap. 22. This section provides as follows:
4.(4) An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.
22. Considering that the application is not opposed, I make no order as to costs. It is so ordered.