1. The application before this Court is the applicant’s motion dated 18 October 2023 seeking the following orders:
“1.THAT Judicial Review order of Mandamus do issue compelling the Principal Secretary Ministry of Transport, Infrastructure Public Works & Urban Development to pay Highpoint Agencies Limited the decretal sum and certified costs in the aggregate sum of Kshs. 6,406,982.41 / = as embodied in the Decree and Certificate of Order dated 1stDecember 2022 issued in HCCOMMARIB No. E001 of 2021.
2.THAT costs of this application be provided for.”
2. The application is supported by a statutory statement dated 24 August 2023 and verifying affidavit sworn on even date by Mr. Richard Matu Macharia who has sworn that he is a director of the applicant company.
3. According to the applicant, the respondent contracted it to undertake certain works at the National Youth Service college at Gilgil. The works were more particularly described as “10 No. Barracks, 2 No. Double Span Kitchens and Dining at the NYS College Gilgil WP Item No. D123 RV/NKU/1601/JOB No. 0428G”. The bid price is stated to have been Kshs. 488,139,678.00/=.
4. In its letter dated 9 September 2016, the applicant accepted the offer and executed the agreement dated 23 September 2016. However, a dispute arose between the applicant and the respondent on non-payment of contractual sums and all accrued interest. Since the contract provided for arbitration, arbitration proceedings were initiated on 12 July 2019.
5. By a final award dated 12 January 2021, the Arbitrator awarded the applicant contractual interest of Kshs. 5,836,515.41/= and costs of the claim to be agreed upon by the parties failure of which the same was to be taxed by the arbitrator. Indeed, parties did not agree on the costs of the arbitral proceedings and so they were taxed at Kshs. 570,467/= in a ruling delivered by the arbitrator on 5 April 2022. On 20 August 2021 the Final Award was adopted as the order of the Court.
6. Subsequently, the applicant through a demand letter dated 23 August 2021, demanded the respondent to settle the amount due to the applicant. As at the applicant filed this motion, the decretal amount had not been paid.
7. It has been sworn that both the decree dated 22 August 2022 and Certificate of Order against Government dated 1 December 2022 have been served but the respondent has failed to pay the judgment debt.
The respondent did not file any response to the motion.
8. In the written submissions filed on behalf of the applicant, the learned counsel for the applicant relied Republic vs. Kenya National Examination Council ex parte Gathenyi & 9 others (1997) eKLR and Republic vs. Principal Secretary Ministry of Internal Security & Another ex parte Schon Noorani & Another [2008] eKLR on the scope of the order of mandamus.
9. It has been submitted that the applicant has satisfied the conditions for the grant of an order of mandamus. It has demonstrated that the respondent, being the accounting officer of the Government ministry concerned, has a public duty to honour the applicant’s demand for payment as set out in the Certificate of Order against Government. It also urged that adequate prior demand has been issued and that there is no other remedy available to the applicant to enjoy the fruits of its judgment since the Government is protected from the ordinary execution process.
10. No doubt, one of the ways through which decrees or orders are enforced is, of course, execution or attachment. However, as the learned counsel for the applicant has submitted, the Government is protected from such process of execution or other similar process in enforcement of decrees or orders by section 21 of the Government Proceedings Act, in particular, section 21(3) thereof. Section 21 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.
11. 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.
12. 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.”
13. 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.)”
14. The applicant has demonstrated that it extracted a certificate of order against government and that the same was duly served upon the respondent. It has not been suggested that the applicant defaulted in any step prescribed under section 21 of the Act as to disentitle it to the order of mandamus. As a matter of fact, the application was not opposed.
15. A demand for payment having been made and the respondents 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.
16. Accordingly, I hereby allow the applicant’s motion dated 18 October 2023 to the extent that an order of mandamus is hereby issued compelling the Principal Secretary Ministry of Transport, Infrastructure Public Works & Urban Development to pay the applicant the decretal sum and certified costs in the aggregate sum of Kshs. 6,406,982.41 / = as embodied in the Decree and Certificate of Order dated 1 December 2022 issued in HCCOMMARIB No. E001 of 2021. The applicant will also have costs of the application. Orders accordingly.
“1.THAT Judicial Review order of Mandamus do issue compelling the Principal Secretary Ministry of Transport, Infrastructure Public Works & Urban Development to pay Highpoint Agencies Limited the decretal sum and certified costs in the aggregate sum of Kshs. 6,406,982.41 / = as embodied in the Decree and Certificate of Order dated 1stDecember 2022 issued in HCCOMMARIB No. E001 of 2021.
2.THAT costs of this application be provided for.”
2. The application is supported by a statutory statement dated 24 August 2023 and verifying affidavit sworn on even date by Mr. Richard Matu Macharia who has sworn that he is a director of the applicant company.
3. According to the applicant, the respondent contracted it to undertake certain works at the National Youth Service college at Gilgil. The works were more particularly described as “10 No. Barracks, 2 No. Double Span Kitchens and Dining at the NYS College Gilgil WP Item No. D123 RV/NKU/1601/JOB No. 0428G”. The bid price is stated to have been Kshs. 488,139,678.00/=.
4. In its letter dated 9 September 2016, the applicant accepted the offer and executed the agreement dated 23 September 2016. However, a dispute arose between the applicant and the respondent on non-payment of contractual sums and all accrued interest. Since the contract provided for arbitration, arbitration proceedings were initiated on 12 July 2019.
5. By a final award dated 12 January 2021, the Arbitrator awarded the applicant contractual interest of Kshs. 5,836,515.41/= and costs of the claim to be agreed upon by the parties failure of which the same was to be taxed by the arbitrator. Indeed, parties did not agree on the costs of the arbitral proceedings and so they were taxed at Kshs. 570,467/= in a ruling delivered by the arbitrator on 5 April 2022. On 20 August 2021 the Final Award was adopted as the order of the Court.
6. Subsequently, the applicant through a demand letter dated 23 August 2021, demanded the respondent to settle the amount due to the applicant. As at the applicant filed this motion, the decretal amount had not been paid.
7. It has been sworn that both the decree dated 22 August 2022 and Certificate of Order against Government dated 1 December 2022 have been served but the respondent has failed to pay the judgment debt.
The respondent did not file any response to the motion.
8. In the written submissions filed on behalf of the applicant, the learned counsel for the applicant relied Republic vs. Kenya National Examination Council ex parte Gathenyi & 9 others (1997) eKLR and Republic vs. Principal Secretary Ministry of Internal Security & Another ex parte Schon Noorani & Another [2008] eKLR on the scope of the order of mandamus.
9. It has been submitted that the applicant has satisfied the conditions for the grant of an order of mandamus. It has demonstrated that the respondent, being the accounting officer of the Government ministry concerned, has a public duty to honour the applicant’s demand for payment as set out in the Certificate of Order against Government. It also urged that adequate prior demand has been issued and that there is no other remedy available to the applicant to enjoy the fruits of its judgment since the Government is protected from the ordinary execution process.
10. No doubt, one of the ways through which decrees or orders are enforced is, of course, execution or attachment. However, as the learned counsel for the applicant has submitted, the Government is protected from such process of execution or other similar process in enforcement of decrees or orders by section 21 of the Government Proceedings Act, in particular, section 21(3) thereof. Section 21 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.
11. 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.
12. 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.”
13. 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.)”
14. The applicant has demonstrated that it extracted a certificate of order against government and that the same was duly served upon the respondent. It has not been suggested that the applicant defaulted in any step prescribed under section 21 of the Act as to disentitle it to the order of mandamus. As a matter of fact, the application was not opposed.
15. A demand for payment having been made and the respondents 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.
16. Accordingly, I hereby allow the applicant’s motion dated 18 October 2023 to the extent that an order of mandamus is hereby issued compelling the Principal Secretary Ministry of Transport, Infrastructure Public Works & Urban Development to pay the applicant the decretal sum and certified costs in the aggregate sum of Kshs. 6,406,982.41 / = as embodied in the Decree and Certificate of Order dated 1 December 2022 issued in HCCOMMARIB No. E001 of 2021. The applicant will also have costs of the application. Orders accordingly.