INTRODUCTION
1. Upon being granted leave by this court on 28th March, 2023, ex-parte Applicant JAPHETH OGAMBA GICHANA through a substantive motion filed on 24th April, 2022 which was later amended with leave of this court on 26th April, 2023, seeking an Order of Mandamus to compel the Attorney General to pay to the applicant the sum of Kshs. 1,304,800 being the decretal amount as at 4th November, 2021 arising from Kisii CMCC NO. 673 of 2009 with interest accruing thereon until payment in full, and taxed costs of the suit; all necessary and appropriate relief and/or direction by this Honourable court and costs of Substantive Application to be provided and costs of the substantive Application.
APPLICANT’S CASE
2. The Motion is based on the grounds set out in the statutory statement and the verifying affidavit of KENNEDY BOSIRE GICHANA. According to the said documents, the Ex parte applicant’s case is that by a decree issued by this Honourable Court on 4th November, 2021, the respondent was ordered to pay the applicant a total sum of Kshs 1,304,800 which sum of money remains unpaid to date. The Exparte Applicant contends that he served all the pleadings, proceedings of the court, certificate order against government and decree and certificate upon the respondent on 29th November, 2021 which the Respondents acknowledged and subsequently upon the Attorney General He decried that despite persistent demands for payment the respondent has not yielded and therefore it was fair and just if the Respondent is compelled to pay same.
RESPONDENT’S CASE
3. In opposition to the application, Attorney General of behalf of the respondents filed grounds of opposition on 9th February, 2024. The grounds of opposition were that the Application offends the mandatory provisions of order 53 of the civil procedure rules, 2010; that the Application based on the statement of facts and the affidavit involving different parties in Ex-parte Application for leave; the amended application fatally defective for introducing new parties to the substantive motion after the determination of the ex parte Application; that there is an apparent error on the face of the court record as this Honorable court cannot entertain an amendment to substantive motion after determination of the ex parte Application for leave; that Applicant’s claim for costs is time barred by virtue of section 4(4) of the limitation Action Ac; and that the Applicant is guilty of laches, indolence and failure to exercise due diligence which is inexcusable conduct that should not be entertained this court; that the orders sought cannot as the same are not supported by factual evidence and/or the law and that the amended Application is bad in law, lacks merit and amounts to an abuse of the court process.
APPLICANT’S SUBMISSIONS
4. The learned counsel for the Applicant submitted that amendment of pleadings is provided for under order 8 of the Civil Procedure Rules. He contended the amendments were done on 26th April, 2023 close to 9 months ago while the Respondents filed their respondents on 9th February, 2024. In essence the learned counsel contended that the amendment are in no way prejudicial since the respondents were yet to file a Response to the Application and had a chance to respond to the averment therein. He contended that the respondent has not established and/or demonstrated the prejudice they have suffered as a result of the amendment of the motion. The learned counsel contended further that the said amendments did not offend the mandatory of order 53 of the Civil Procedure Rules since the said order does not bar any party from amending pleadings.
5. The learned counsel submitted equally that it is not in dispute that the Applicant has a judgement against the respondent in Kisii CMCC No. 673 of 2009 where the court ordered the respondents to pay the Applicant a decretal sum of Kshs. 1,304,800 together with costs and interests but the respondents have refused or failed to pay the said amount despite the several reminders. The learned counsel thus underscored that based on the said background he was deserving of the order of mandamus. To support the Application Republic vs the Permanent Secretary of internal Security and another exparte Schon Nooran & another(2018) eKLR which set out the requirements that must be met for the order of Mandamus to issue which requirement he reiterated had been met. The learned counsel submitted that section 21 of the Government Act sets out the requirements to be met in the enforcement of the orders as against government organs in the civil proceedings which requirement she contended the same were met.
6. The learned counsel further submitted that the applicant had served all the documents including demand notices upon the respondents but the respondent ignored the same . In conclusion he underscored that the ex parte Applicant is Application is merited and the same should be allowed.
THE RESPONDENT’S SUBMISSIONS
7. The learned counsel for the respondent submitted on two issues are:
a. Whether the amended notice of motion application before court is competent and in compliance with the provisions of order 53.
b. Whether claim for interest is properly before court.
8. On the first issue the learned counsel submitted that the jurisdiction of the Honorable court in judicial review matters very limited in scope and application to the extent provided for under Civil Procedure Act more specifically order 53 and section 8 and 9 of the Law Reform Act. He contended that a scrutiny of the amended notice of motion is incurable defective, incompetent and an abuse of court process. The learned counsel pointed out that applicant had in his own words submitted that leave to file the substantive motion was granted on the 28th day of March 2023, though a copy of the said leave has not been annexed. He went on to argue that, assuming that that was the right position, then it followed that the substantive motion ought to have been filed on or before 18th day of April 2023. He contended therefore that since first motion was filed on 26th of April 2023 way outside the mandatory 21 day's as provided under order 53 (3) thereof and that there was no extension sought by the applicant, then the end result is that the notice of motion filed on 26th April 2023 is a nullity ab initio and should be dismissed.
9. The learned counsel relied in the case of the case of Republic v Medical Laboratory Technicians and Technologists Board ex parte Edna Mwende Kavindu (2017) eKLR the court the court held that
"there is no competent application before it and struck it off for being filed outside the mandatory provided 21 days ".
10. He also relied in the in the case of Wilson Osolo v John Jamabo Ochola & Another (1996) eKLR. Where the court of appeal held that
"it was a mandatory requirement of order 53 Rule 3(1) of the Civil Procedure Rules then (and it is now again so) that the notice of motion must be filed within 21 days of grant of such leave. No such notice of motion having been apparently filed within 21 days ...there was no proper application before the Superior Court.
11. The learned counsel equally submitted that under order 53 the only amendments allowed are in respect to the statement of facts, Order 53 rule 4 (2) provides that;
“The High Court may on the hearing of the motion allow the said statement to be amended, and may allow further affidavits to be used if they deal with new mater arising out of the affidavits of any other party to the application and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he shall give notice of his intention and of any proposed amendment of his statement, and shall supply on demand copies of any such further affidavit".
12. He contended that the Application did not meet the said requirement and thus the same is bad in law. In support of his argument the learned counsel relied on the case of case of Republic v Commission on Administrative Justice; Yusuf Mahamed Fazul (Interested Party).
13. The learned counsel argued that even though there is no provision for amendment of notice of motion under order 53, still the applicant failed to even attempt to seek leave of the court to be permitted to effect the alleged amendments. He submitted further that substantive notice of motion should as a matter of fact be a mirror image of the application seeking leave to file Judicial Review proceedings and the Statement made thereof.
14. On the second issue the learned counsel argued that for claim of interest is not within the purview of judicial review court and that the prayer is time barred by virtue of the provisions of section 4-(4) of the limitation of Actions Act.
ISSUES OF DETERMINATION
15. Having considered the substantive Application, the supporting affidavit with all the annextures thereto, grounds of opposition and the written submissions of the parties, I find that the issues for determination are;
a) Whether the amended notice of motion application before court is competent and in compliance with the provisions of order 53.
b) Whether the amendments to the Application without leave renders the same incompetent
c) Whether the claim for interest is time barred
d) Whether Applicant has met all the requirement for grant of order of mandamus against the respondent.
ANALYSIS AND DETERMINATION
Whether the amended notice of motion application before court is competent and in compliance with the provisions of order 53.
16. The learned counsel for the respondent has submitted that since leave to file substantive motion was granted on 28th March, 2023 it followed that the substantive motion ought to have been filed on or before 18th April 2023. He contended therefore that since first motion was filed on 26th April 2023 which was way outside the mandatory 21 day's as provided under order 53 (3) thereof and that there was no extension sought by the applicant, then the end result is that the notice of motion filed on 26th April 2023 is a nullity ab initio and should be dismissed.
17. Before determining this issue it’s important to review the record of this court in relation to the filing of the substantive motion. It is on record that on 28th March, 2023 Justice Gichohi, did allow the Application for leave to institute the substantive Motion within 21days. On 25th April, 2023, Mr. Gichana for the applicant and Mr. Rana for the Respondent appeared before Justice Gichohi for the Interpartes hearing of the substantive motion. Mr. Gichana informed the court that the Applicant had filed and served a notice of the substantive motion on the previous day (24th April, 2023) but he had discovered errors on it. He thus made an oral Application seeking leave of the court to amend the substantive Motion in order to correct said errors therein. Surprisingly Mr. Rana indicated that the respondent was not objected to the substantive motion being amended.
18. Upon considering the submissions of the two learned counsel, the court granted leave to the Applicant to amend the substantive motion. The court went on to direct the Applicant to file and serve the amended substantive motion within 3 days. The court further gave the respondent 21 days from the date being serviced to file and serve responses to the amended substantive motion. The applicant there after filed an amended substantive motion 26th April, 2023.
19. The court having granted the applicant to leave to amend and file substantive motion after considering that the respondent did not have any objection to the same being granted, the same respondent cannot be heard claiming same is defective. This was an objection the respondent should have raised before Justice Gichohi allowing the amended motion to be on record but he opted not to and leave was granted.
20. Since the substantive motion is on record courtesy of a leave of this court the same cannot be said have failed to meet the requirements of order 53(3) which has a rider requiring leave of court which leave was granted with the support of the respondent.
Whether the amendment to the notice of motion renders it defective
21. The Respondent in the grounds of opposition argue that the amended application is fatally defective for introducing new parties to the substantive motion after the determination of the ex parte Application. The respondent also raised a ground to the effect that this court should not entertain an amendment to substantive motion after determination of the ex parte Application for leave.
22. In his submissions the learned counsel for the respondent contends that amendments that allowable under order 53 are amendments in respect to the statement of facts. He argued further that even though there is no provision for amendment of notice of motion under order 53, still the applicant failed to even attempt to seek leave of the court to be permitted to effect the alleged amendments. He submitted further that substantive notice of motion should as a matter of fact be a mirror image of the application seeking leave to file Judicial Review proceedings and the Statement made thereof.
23. From the above analysis of the averments in the grounds of opposition and the written submissions, it is outright learned counsel who drafted grounds of opposition and the written submissions was not well versed with the proceedings of this court regarding this Application. I say so because, he seems not to be aware know that this court on 25th April, 2023 granted leave to the applicant to amend the substantive motion and that the said leave was granted with the support of Respondent.
24. The learned counsel argument that order 53 limits amendments to errors to on statements facts only is baseless. Section 100 this court grant discretion to grant parties a right to amend their pleadings at any stage of the proceedings so longs as the amendments meet criteria set out under Order 8 Rule 3 of the Civil Procedure Rules. In any case this court had already allowed the amendments to the substantive motion on 25th April, 2023 with the support of the respondent.
25. Regarding claim introduction a new party into the substantive motion, the amendment was not objected to by the respondent and was thus allowed by a court of concurrent jurisdiction and this court. has no capacity to sit on appeal on decisions of a court of concurrent jurisdiction . The said ground must fail .
Whether the claim for interest is time barred
26. Section 4(4) of the Limitation of Actions Act, Cap 22 Laws of Kenya provides:-
“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, in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.”
27. From the above provision of the law it is outright that a claim for interest must be raised within 6 years from the date when it’s due.
28. The Judgment was determined in favor of the plaintiff on 18th September, 2012 wherein the Plaintiff was awarded special damages of Kshs. 450,000 as special damages with interests from the date filing of the suit which was 26th November, 2009 as well costs which were later assessed at Kshs. 114,404 on 24th April, 2019 at and a certificate of order against government issued on 4th November, 2021 and the respondent was served on the Respondent on 29th November, 2021.
29. From the above summary the judgement in question does not fall within the ambit of section 4(4) of the Limitation of Action Act as the execution process commenced on 4th November, 2021 before the lapse of 12 years from the date of judgment which is 18th September, 2012.
30. However the Respondent’s main contention is that that interest cannot be recovered after expiration of six years. On that issue and by virtue of Section 4 (4) of the Limitation of Action’s Act, the ex-parte Applicant’s claim for interest is time barred. The relevant part of that section states thus,
“……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.”
31. The Judgement is emphatic that the interest shall be due from the date of filing of the suit. Therefore it is outright that as at the time the execution process was commencing 6 years had expired given that time started running on 26th November, 2009 when the suit was filed up to 26th November, 2015 and thus it goes without saying that the claim for interest on the decretal sum is time barred as correctly underscored by the respondent.
Whether Applicant has met all the requirement for grant of order of mandamus against the respondent.
32. The requirements for grant of an order of mandamus were explained by Mativo J(as he then was). in Republic vs Principal Secretary, Ministry of Internal Security & another ex parte Schon Noorani & Another (supra) as follows:
“Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. vs. Canada (Attorney General), [23] and, was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration).[24] The eight factors that must be present for the writ to issue are:-
(i) There must be a public legal duty to act;
(ii) The duty must be owed to the Applicants;
(iii) There must be a clear right to the performance of that duty, meaning that:
a. The Applicants have satisfied all conditions precedent; and
b. There must have been:
i. A prior demand for performance;
ii. A reasonable time to comply with the demand, unless there was outright refusal; and
iii. An express refusal, or an implied refusal through unreasonable delay;
iv. No other adequate remedy is available to the Applicants;
v. The Order sought must be of some practical value or effect;
vi. There is no equitable bar to the relief sought;
vii. On a balance of convenience, mandamus should lie
33. Section 21 of the Government Proceedings Act in this regard provides for a number requirements which have to be met in the enforcement of orders as against Government organs in civil proceedings:
“(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.
(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.”
34. It is not disputed in judgment was entered in favor of the ex parte Applicants in Kisii CMCC No. 673 of 2009 as against the Respondent on 18th September, 2012. The ex parte Applicant in this respect annexed copies of the Certificates of Order Against the Government issued in her favor against the Respondent, for the decretal sum of Kshs. 450,000/= on 4th November, 2021 plus interests which as I have observed are not recoverable because they are time barred, and costs taxed at Kshs 114,405 /=. The ex parte Applicants also brought evidence to show that they made demands and requests for payment which have not been heeded to by the Respondent. I therefore find that ex parte Applicant‘s substantive motion partially succeeds .
THE DISPOSITION
35. In the premises, I find that the ex parte Applicant’s Notice of Motion dated 24th April, 2023 is merited and I proceed to issue the following orders :
a) An order of mandamus be and is hereby issued to compel the Respondent to satisfy the decree in Kisii CMCC No. 673 of 2009 in favour of the ex-parte Applicant in the sum of Kshs. 450,000/= and costs in the sum of Kshs. 114,405/= within 120 days from today.
b) In case of default execution to issue.
c) The ex Parte Applicant shall have the costs of the Notice of Motion dated 24th April 2023 in the sum of Kshs 30,000/=.
36. Orders accordingly.
Delivered virtually via team platform on on this 26th day of February 2025 in the presence of
CA : OIGO
Nyaenya_ - `exparte applicant
N/A for respondent
1. Upon being granted leave by this court on 28th March, 2023, ex-parte Applicant JAPHETH OGAMBA GICHANA through a substantive motion filed on 24th April, 2022 which was later amended with leave of this court on 26th April, 2023, seeking an Order of Mandamus to compel the Attorney General to pay to the applicant the sum of Kshs. 1,304,800 being the decretal amount as at 4th November, 2021 arising from Kisii CMCC NO. 673 of 2009 with interest accruing thereon until payment in full, and taxed costs of the suit; all necessary and appropriate relief and/or direction by this Honourable court and costs of Substantive Application to be provided and costs of the substantive Application.
APPLICANT’S CASE
2. The Motion is based on the grounds set out in the statutory statement and the verifying affidavit of KENNEDY BOSIRE GICHANA. According to the said documents, the Ex parte applicant’s case is that by a decree issued by this Honourable Court on 4th November, 2021, the respondent was ordered to pay the applicant a total sum of Kshs 1,304,800 which sum of money remains unpaid to date. The Exparte Applicant contends that he served all the pleadings, proceedings of the court, certificate order against government and decree and certificate upon the respondent on 29th November, 2021 which the Respondents acknowledged and subsequently upon the Attorney General He decried that despite persistent demands for payment the respondent has not yielded and therefore it was fair and just if the Respondent is compelled to pay same.
RESPONDENT’S CASE
3. In opposition to the application, Attorney General of behalf of the respondents filed grounds of opposition on 9th February, 2024. The grounds of opposition were that the Application offends the mandatory provisions of order 53 of the civil procedure rules, 2010; that the Application based on the statement of facts and the affidavit involving different parties in Ex-parte Application for leave; the amended application fatally defective for introducing new parties to the substantive motion after the determination of the ex parte Application; that there is an apparent error on the face of the court record as this Honorable court cannot entertain an amendment to substantive motion after determination of the ex parte Application for leave; that Applicant’s claim for costs is time barred by virtue of section 4(4) of the limitation Action Ac; and that the Applicant is guilty of laches, indolence and failure to exercise due diligence which is inexcusable conduct that should not be entertained this court; that the orders sought cannot as the same are not supported by factual evidence and/or the law and that the amended Application is bad in law, lacks merit and amounts to an abuse of the court process.
APPLICANT’S SUBMISSIONS
4. The learned counsel for the Applicant submitted that amendment of pleadings is provided for under order 8 of the Civil Procedure Rules. He contended the amendments were done on 26th April, 2023 close to 9 months ago while the Respondents filed their respondents on 9th February, 2024. In essence the learned counsel contended that the amendment are in no way prejudicial since the respondents were yet to file a Response to the Application and had a chance to respond to the averment therein. He contended that the respondent has not established and/or demonstrated the prejudice they have suffered as a result of the amendment of the motion. The learned counsel contended further that the said amendments did not offend the mandatory of order 53 of the Civil Procedure Rules since the said order does not bar any party from amending pleadings.
5. The learned counsel submitted equally that it is not in dispute that the Applicant has a judgement against the respondent in Kisii CMCC No. 673 of 2009 where the court ordered the respondents to pay the Applicant a decretal sum of Kshs. 1,304,800 together with costs and interests but the respondents have refused or failed to pay the said amount despite the several reminders. The learned counsel thus underscored that based on the said background he was deserving of the order of mandamus. To support the Application Republic vs the Permanent Secretary of internal Security and another exparte Schon Nooran & another(2018) eKLR which set out the requirements that must be met for the order of Mandamus to issue which requirement he reiterated had been met. The learned counsel submitted that section 21 of the Government Act sets out the requirements to be met in the enforcement of the orders as against government organs in the civil proceedings which requirement she contended the same were met.
6. The learned counsel further submitted that the applicant had served all the documents including demand notices upon the respondents but the respondent ignored the same . In conclusion he underscored that the ex parte Applicant is Application is merited and the same should be allowed.
THE RESPONDENT’S SUBMISSIONS
7. The learned counsel for the respondent submitted on two issues are:
a. Whether the amended notice of motion application before court is competent and in compliance with the provisions of order 53.
b. Whether claim for interest is properly before court.
8. On the first issue the learned counsel submitted that the jurisdiction of the Honorable court in judicial review matters very limited in scope and application to the extent provided for under Civil Procedure Act more specifically order 53 and section 8 and 9 of the Law Reform Act. He contended that a scrutiny of the amended notice of motion is incurable defective, incompetent and an abuse of court process. The learned counsel pointed out that applicant had in his own words submitted that leave to file the substantive motion was granted on the 28th day of March 2023, though a copy of the said leave has not been annexed. He went on to argue that, assuming that that was the right position, then it followed that the substantive motion ought to have been filed on or before 18th day of April 2023. He contended therefore that since first motion was filed on 26th of April 2023 way outside the mandatory 21 day's as provided under order 53 (3) thereof and that there was no extension sought by the applicant, then the end result is that the notice of motion filed on 26th April 2023 is a nullity ab initio and should be dismissed.
9. The learned counsel relied in the case of the case of Republic v Medical Laboratory Technicians and Technologists Board ex parte Edna Mwende Kavindu (2017) eKLR the court the court held that
"there is no competent application before it and struck it off for being filed outside the mandatory provided 21 days ".
10. He also relied in the in the case of Wilson Osolo v John Jamabo Ochola & Another (1996) eKLR. Where the court of appeal held that
"it was a mandatory requirement of order 53 Rule 3(1) of the Civil Procedure Rules then (and it is now again so) that the notice of motion must be filed within 21 days of grant of such leave. No such notice of motion having been apparently filed within 21 days ...there was no proper application before the Superior Court.
11. The learned counsel equally submitted that under order 53 the only amendments allowed are in respect to the statement of facts, Order 53 rule 4 (2) provides that;
“The High Court may on the hearing of the motion allow the said statement to be amended, and may allow further affidavits to be used if they deal with new mater arising out of the affidavits of any other party to the application and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he shall give notice of his intention and of any proposed amendment of his statement, and shall supply on demand copies of any such further affidavit".
12. He contended that the Application did not meet the said requirement and thus the same is bad in law. In support of his argument the learned counsel relied on the case of case of Republic v Commission on Administrative Justice; Yusuf Mahamed Fazul (Interested Party).
13. The learned counsel argued that even though there is no provision for amendment of notice of motion under order 53, still the applicant failed to even attempt to seek leave of the court to be permitted to effect the alleged amendments. He submitted further that substantive notice of motion should as a matter of fact be a mirror image of the application seeking leave to file Judicial Review proceedings and the Statement made thereof.
14. On the second issue the learned counsel argued that for claim of interest is not within the purview of judicial review court and that the prayer is time barred by virtue of the provisions of section 4-(4) of the limitation of Actions Act.
ISSUES OF DETERMINATION
15. Having considered the substantive Application, the supporting affidavit with all the annextures thereto, grounds of opposition and the written submissions of the parties, I find that the issues for determination are;
a) Whether the amended notice of motion application before court is competent and in compliance with the provisions of order 53.
b) Whether the amendments to the Application without leave renders the same incompetent
c) Whether the claim for interest is time barred
d) Whether Applicant has met all the requirement for grant of order of mandamus against the respondent.
ANALYSIS AND DETERMINATION
Whether the amended notice of motion application before court is competent and in compliance with the provisions of order 53.
16. The learned counsel for the respondent has submitted that since leave to file substantive motion was granted on 28th March, 2023 it followed that the substantive motion ought to have been filed on or before 18th April 2023. He contended therefore that since first motion was filed on 26th April 2023 which was way outside the mandatory 21 day's as provided under order 53 (3) thereof and that there was no extension sought by the applicant, then the end result is that the notice of motion filed on 26th April 2023 is a nullity ab initio and should be dismissed.
17. Before determining this issue it’s important to review the record of this court in relation to the filing of the substantive motion. It is on record that on 28th March, 2023 Justice Gichohi, did allow the Application for leave to institute the substantive Motion within 21days. On 25th April, 2023, Mr. Gichana for the applicant and Mr. Rana for the Respondent appeared before Justice Gichohi for the Interpartes hearing of the substantive motion. Mr. Gichana informed the court that the Applicant had filed and served a notice of the substantive motion on the previous day (24th April, 2023) but he had discovered errors on it. He thus made an oral Application seeking leave of the court to amend the substantive Motion in order to correct said errors therein. Surprisingly Mr. Rana indicated that the respondent was not objected to the substantive motion being amended.
18. Upon considering the submissions of the two learned counsel, the court granted leave to the Applicant to amend the substantive motion. The court went on to direct the Applicant to file and serve the amended substantive motion within 3 days. The court further gave the respondent 21 days from the date being serviced to file and serve responses to the amended substantive motion. The applicant there after filed an amended substantive motion 26th April, 2023.
19. The court having granted the applicant to leave to amend and file substantive motion after considering that the respondent did not have any objection to the same being granted, the same respondent cannot be heard claiming same is defective. This was an objection the respondent should have raised before Justice Gichohi allowing the amended motion to be on record but he opted not to and leave was granted.
20. Since the substantive motion is on record courtesy of a leave of this court the same cannot be said have failed to meet the requirements of order 53(3) which has a rider requiring leave of court which leave was granted with the support of the respondent.
Whether the amendment to the notice of motion renders it defective
21. The Respondent in the grounds of opposition argue that the amended application is fatally defective for introducing new parties to the substantive motion after the determination of the ex parte Application. The respondent also raised a ground to the effect that this court should not entertain an amendment to substantive motion after determination of the ex parte Application for leave.
22. In his submissions the learned counsel for the respondent contends that amendments that allowable under order 53 are amendments in respect to the statement of facts. He argued further that even though there is no provision for amendment of notice of motion under order 53, still the applicant failed to even attempt to seek leave of the court to be permitted to effect the alleged amendments. He submitted further that substantive notice of motion should as a matter of fact be a mirror image of the application seeking leave to file Judicial Review proceedings and the Statement made thereof.
23. From the above analysis of the averments in the grounds of opposition and the written submissions, it is outright learned counsel who drafted grounds of opposition and the written submissions was not well versed with the proceedings of this court regarding this Application. I say so because, he seems not to be aware know that this court on 25th April, 2023 granted leave to the applicant to amend the substantive motion and that the said leave was granted with the support of Respondent.
24. The learned counsel argument that order 53 limits amendments to errors to on statements facts only is baseless. Section 100 this court grant discretion to grant parties a right to amend their pleadings at any stage of the proceedings so longs as the amendments meet criteria set out under Order 8 Rule 3 of the Civil Procedure Rules. In any case this court had already allowed the amendments to the substantive motion on 25th April, 2023 with the support of the respondent.
25. Regarding claim introduction a new party into the substantive motion, the amendment was not objected to by the respondent and was thus allowed by a court of concurrent jurisdiction and this court. has no capacity to sit on appeal on decisions of a court of concurrent jurisdiction . The said ground must fail .
Whether the claim for interest is time barred
26. Section 4(4) of the Limitation of Actions Act, Cap 22 Laws of Kenya provides:-
“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, in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.”
27. From the above provision of the law it is outright that a claim for interest must be raised within 6 years from the date when it’s due.
28. The Judgment was determined in favor of the plaintiff on 18th September, 2012 wherein the Plaintiff was awarded special damages of Kshs. 450,000 as special damages with interests from the date filing of the suit which was 26th November, 2009 as well costs which were later assessed at Kshs. 114,404 on 24th April, 2019 at and a certificate of order against government issued on 4th November, 2021 and the respondent was served on the Respondent on 29th November, 2021.
29. From the above summary the judgement in question does not fall within the ambit of section 4(4) of the Limitation of Action Act as the execution process commenced on 4th November, 2021 before the lapse of 12 years from the date of judgment which is 18th September, 2012.
30. However the Respondent’s main contention is that that interest cannot be recovered after expiration of six years. On that issue and by virtue of Section 4 (4) of the Limitation of Action’s Act, the ex-parte Applicant’s claim for interest is time barred. The relevant part of that section states thus,
“……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.”
31. The Judgement is emphatic that the interest shall be due from the date of filing of the suit. Therefore it is outright that as at the time the execution process was commencing 6 years had expired given that time started running on 26th November, 2009 when the suit was filed up to 26th November, 2015 and thus it goes without saying that the claim for interest on the decretal sum is time barred as correctly underscored by the respondent.
Whether Applicant has met all the requirement for grant of order of mandamus against the respondent.
32. The requirements for grant of an order of mandamus were explained by Mativo J(as he then was). in Republic vs Principal Secretary, Ministry of Internal Security & another ex parte Schon Noorani & Another (supra) as follows:
“Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. vs. Canada (Attorney General), [23] and, was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration).[24] The eight factors that must be present for the writ to issue are:-
(i) There must be a public legal duty to act;
(ii) The duty must be owed to the Applicants;
(iii) There must be a clear right to the performance of that duty, meaning that:
a. The Applicants have satisfied all conditions precedent; and
b. There must have been:
i. A prior demand for performance;
ii. A reasonable time to comply with the demand, unless there was outright refusal; and
iii. An express refusal, or an implied refusal through unreasonable delay;
iv. No other adequate remedy is available to the Applicants;
v. The Order sought must be of some practical value or effect;
vi. There is no equitable bar to the relief sought;
vii. On a balance of convenience, mandamus should lie
33. Section 21 of the Government Proceedings Act in this regard provides for a number requirements which have to be met in the enforcement of orders as against Government organs in civil proceedings:
“(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.
(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.”
34. It is not disputed in judgment was entered in favor of the ex parte Applicants in Kisii CMCC No. 673 of 2009 as against the Respondent on 18th September, 2012. The ex parte Applicant in this respect annexed copies of the Certificates of Order Against the Government issued in her favor against the Respondent, for the decretal sum of Kshs. 450,000/= on 4th November, 2021 plus interests which as I have observed are not recoverable because they are time barred, and costs taxed at Kshs 114,405 /=. The ex parte Applicants also brought evidence to show that they made demands and requests for payment which have not been heeded to by the Respondent. I therefore find that ex parte Applicant‘s substantive motion partially succeeds .
THE DISPOSITION
35. In the premises, I find that the ex parte Applicant’s Notice of Motion dated 24th April, 2023 is merited and I proceed to issue the following orders :
a) An order of mandamus be and is hereby issued to compel the Respondent to satisfy the decree in Kisii CMCC No. 673 of 2009 in favour of the ex-parte Applicant in the sum of Kshs. 450,000/= and costs in the sum of Kshs. 114,405/= within 120 days from today.
b) In case of default execution to issue.
c) The ex Parte Applicant shall have the costs of the Notice of Motion dated 24th April 2023 in the sum of Kshs 30,000/=.
36. Orders accordingly.
Delivered virtually via team platform on on this 26th day of February 2025 in the presence of
CA : OIGO
Nyaenya_ - `exparte applicant
N/A for respondent