1. The application that comes up for determination is the Notice of Motion dated 20th June 2024 wherein the Applicant seeks the following orders;
1) An order of Mandamus do issue compelling the Respondent to pay the Ex-Parte Applicant, the decretal sum of Kshs. 389,238.30 together with interest thereon at the rate 14% per annum from 6th May 2022 until payment thereof in full.
2) The costs of this Application be provided for.
2. The said Application was served upon the Respondent on 21st June 2024 and it subsequently entered appearance by filing a Notice of Appointment dated 24th June 2024. Despite the Respondent being duly on record, it has not filed nor served a response to the said Application as directed by the honourable court on 5th June 2024.
3. The application is supported by the Statutory Statement dated 29th May 2024, and a Verifying Affidavit sworn on the same date.
Analysis and determination:
The issue for determination is whether an Order of Mandamus should issue as prayed in the Ex parte Applicant’s Application.
4. In the case of Evanson Jidiraph Kamau & Another vs. The Attorney General, Mombasa H.C. Misc. Application No. 40 of 2000 that;
“The purpose of an order of mandamus is to compel the performance of a public duty or any act contrary to or evasive of the law. It therefore lies against a public officer when some specific act or thing, which the law requires to be done, has been omitted. The conditions for its grant are that it must be shown that the public officer has failed to perform his duty; the court will not grant mandamus where there is an alternative remedy available to the applicant”
5. The Ex-parte Applicant was instructed by the Respondent to represent it in HCCC No. 56 of 2006 (Trattoria Limited vs City Council of Nairobi). The Applicant prosecuted the said matter to conclusion, however, the Respondent failed to settle the Applicant’s legal fees prompting the latter to file an Advocate- Client Bill of Costs which was taxed in the sum of Kshs 389,288.30 together with interest thereon at the rate of 14% per annum from 6th May 2022 until payment in full.
6. The said Advocate-Client Bill of costs was adopted as a Judgment and Decree of the court on 27th September 2023 which was duly served upon the Respondent on 23rd February 2024.
7. The Respondent has since failed to honour the same to date necessitating the filing of the instant Application.
8. The Certificate of Taxation in the sum of Kshs 389,288.30 was adopted as judgment and decree of the court and the same served upon the Respondent.
9. This court is guided by the finding in the case of Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR wherein the court made a finding that:
“In ordinary circumstances, once a judgment has been entered in a civil suit in favour of one party against another and a decree is subsequently issued, the successful litigant is entitled to execute for the decretal amount even on the following day. When the Government is sued in a civil action through its legal representative by a citizen, it becomes a party just like any other party defending a civil suit. Similarly, when a judgment has been entered against the government and a monetary decree is issued against it, it does not enjoy any special privileges with regards to its liability to pay except when it comes to the mode of execution of the decree. Unlike in other civil proceedings, where decrees for the payment of money or costs had been issued against the Government in favour of a litigant, the said decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant ministry to pay the decretal amount as the Government is protected and given immunity from execution and attachment of its property/goods under Section 21(4) of the Government Proceedings Act. The only requirement which serves as a condition precedent to the satisfaction or enforcement of decrees for money issued against the Government is found in Section 21(1) and (2) of the Government Proceedings Act (hereinafter referred to as the Act) which provides that payment will be based on a certificate of costs obtained by the successful litigant from the court issuing the decree which should be served on the Hon Attorney General. The certificate of order against the Government should be issued by the court after expiration of 21 days after entry of judgment. Once the certificate of order against the Government is served on the Hon Attorney General, section 21(3) imposes a statutory duty on the accounting officer concerned to pay the sums specified in the said order to the person entitled or to his advocate together with any interest lawfully accruing thereon. This provision does not condition payment to budgetary allocation and parliamentary approval of Government expenditure in the financial year subsequent to which Government liability accrues.”
10. In a bid to prove its case, the applicant furnished the court with a copy of the Certificate of Taxation and a copy of the decree. The applicant has not furnished the court with a certificate of order. The upshot of the foregoing is that the applicant has not proven its case.
Order;
The application lacks merit and the same is dismissed with costs.