1. Pursuant to leave of this court, the Applicant by way of a Notice of Motion dated 24th July, 2023 seeks for the following orders:
1) THAT, this Hon. Court be pleased to grant the Applicant an order of MANDAMUS compelling the respondent and its MINISTER OF FINANCE and/or the ACCOUNTING OFFICER IN CHARGE OF THE RESPONDENT'S TREASURY and MONEY in the Respondent's COUNTY GOVERNMENT to pay the Applicant Ksh. 2,253.600/= together with interests from 22nd March, 2022 until payment in full.
2) THAT,the costs of this JUDICIAL REVIEW proceedings be provided for and be paid by the Respondent together with the orders as in l above.
2. The Application is anchored on the grounds on the face of it, the verifying affidavit of Adam Maina Karuga, and the statutory statement – both dated 14th December, 2023.
3. The Application is unopposed.
4. According to the Applicant, it is only the order of mandamus that can compel the Respondent to pay the amount due & owing to the Applicant, with interests and costs.
5. That the Respondent has not paid the money just because of the fact that the decree & costs was arrived at after an inter-parties hearing in proceedings which the Respondent was represented by counsel.
6. After considering the material before this court, the issue for determination that arises is whether the Application is merited to grant judicial review orders of mandamus as sought.
7. Before an order of mandamus is issued, an Applicant must abide by the procedure in Section 21 of Government Proceedings Act which provides:
“(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 favor 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.”
8. Section 21 (3) of the said Act on the other hand provides:
“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.”
9. The circumstances under which judicial review order of mandamus are issued were discussed in the case Republic v Kenya National Examinations Council Ex Parte Gathenji & 8 Others Civil Appeal No 234 of 1996, where the Court of Appeal cited with approval, Halsbury’s Law of England, 4th Edition. Vol. 7 p. 111 para 89 thus:
"The order of mandamus is of most extensive remedial nature and is in form, of a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."...These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”
10. In the instant case, the Applicant has moved this Court to compel the Respondent to settled the judgment already decreed in its favor by a competent Court of law.
11. From the record filed in the court, there is no evidence that a Certificate of Order against the Government was ever obtained or served to the Respondent.
12. Consequently, it is clear that the Applicant did not comply with Section 21 of Government Proceedings Act for failure to obtain and serve upon the Respondent a Certificate of Order against the Government.
13. In the premises, the Applicant has not made a case for the grant of an order of mandamus, and I hereby decline to grant the same in terms of prayers sought.
1) THAT, this Hon. Court be pleased to grant the Applicant an order of MANDAMUS compelling the respondent and its MINISTER OF FINANCE and/or the ACCOUNTING OFFICER IN CHARGE OF THE RESPONDENT'S TREASURY and MONEY in the Respondent's COUNTY GOVERNMENT to pay the Applicant Ksh. 2,253.600/= together with interests from 22nd March, 2022 until payment in full.
2) THAT,the costs of this JUDICIAL REVIEW proceedings be provided for and be paid by the Respondent together with the orders as in l above.
2. The Application is anchored on the grounds on the face of it, the verifying affidavit of Adam Maina Karuga, and the statutory statement – both dated 14th December, 2023.
3. The Application is unopposed.
4. According to the Applicant, it is only the order of mandamus that can compel the Respondent to pay the amount due & owing to the Applicant, with interests and costs.
5. That the Respondent has not paid the money just because of the fact that the decree & costs was arrived at after an inter-parties hearing in proceedings which the Respondent was represented by counsel.
6. After considering the material before this court, the issue for determination that arises is whether the Application is merited to grant judicial review orders of mandamus as sought.
7. Before an order of mandamus is issued, an Applicant must abide by the procedure in Section 21 of Government Proceedings Act which provides:
“(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 favor 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.”
8. Section 21 (3) of the said Act on the other hand provides:
“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.”
9. The circumstances under which judicial review order of mandamus are issued were discussed in the case Republic v Kenya National Examinations Council Ex Parte Gathenji & 8 Others Civil Appeal No 234 of 1996, where the Court of Appeal cited with approval, Halsbury’s Law of England, 4th Edition. Vol. 7 p. 111 para 89 thus:
"The order of mandamus is of most extensive remedial nature and is in form, of a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."...These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”
10. In the instant case, the Applicant has moved this Court to compel the Respondent to settled the judgment already decreed in its favor by a competent Court of law.
11. From the record filed in the court, there is no evidence that a Certificate of Order against the Government was ever obtained or served to the Respondent.
12. Consequently, it is clear that the Applicant did not comply with Section 21 of Government Proceedings Act for failure to obtain and serve upon the Respondent a Certificate of Order against the Government.
13. In the premises, the Applicant has not made a case for the grant of an order of mandamus, and I hereby decline to grant the same in terms of prayers sought.