REPUBLIC OF KENYA
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
JR. Misc.NO. E039 OF 2023
IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS
IN THE MATTER OF: THE CONSTITUTION OF KENYA, 2010
IN THE MATTER OF: ENFORCEMENT OF DECREE IN THE HIGH COURT OF KENYA AT NAIROBI, MILIMANI LAW COURTS, COMMERCIAL AND TAX DIVISION, HC MISC. APPLICATION NO 303 OF 2017
BETWEEN
REPUBLIC …………………………………….……………………APPLICANT
VERSUS
THE COUNTY SECRETARY ………………………..1ST RESPONDENT
NAIROBI COUNTY GOVERNMENT ……………..2ND RESPONDENT
AND
LATIS CONSTRUCTION LIMITED ………...EX-PARTE APPLICANT
JUDGMENT
1. Through application the application dated 13th October 2023 the applicant is seeking the following orders.
a) THAT an order of mandamus be issued directed at the County Secretary, Nairobi County Government in the Republic of Kenya compelling him to satisfy the decree issued by the High Court, Miscellaneous Cause No. 303 of 2017, LATIS CONSTRUCTION LIMITED —VS--- THE COUNTY SECRETARY, NAIROBI COUNTY GOVERNMENT & ANOTHER being payment of Kenya Shillings One Hundred and Thirty-Six Million, Two Hundred and Sixteen Thousand, Four Hundred and Forty-Seven and Forty-Four Cents (Kshs. 136,216,447.44) as per the Certificate of Order against the Government dated 20th August 2020, with interest thereafter levied at the decreed rate of 18% per annum till payment in full.
b) THAT costs of and incidental to this application be provided for.
The Ex-Parte Applicant’s Case
2. The Ex-Parte Applicant filed a suit against the Respondents on 23rd March 2016 in High Court Miscellaneous Cause No. 303 of 2017 seeking leave to enforce an Arbitral award made and published on 23rd March, 2016 in the sum of Kenya Shillings One Hundred and Thirty-Six Million, Two Hundred and Sixteen Thousand, Four Hundred and Forty-Seven and Forty-Four Cents. (Kes. 136,216,447.44) as per the Certificate of Order against Government issued on 20th August 2020.
3. The Ex-Parte Applicant provided evidence that demands were made to the Respondent vide a letter dated 27th August 2020 in which the Certificate of Order as attached.
4. The Applicant filed an application against the Respondents herein and the matter proceeded for hearing on 26th September 2017. A ruling was delivered on 11th May, 2018 in the applicants favour in the following terms: -
a) That the Applicant herein be granted leave to enforce as a decree of this Honourable Court, the Arbitrator's Final Award dated, made and published on 23rd March, 2016.
The Applicant was issued with a decree by the court on 24th July, 2018 being "LK 3".
A certificate of taxation was issued on 24th December 2018 as annexure “LK 4(a)".
The Applicant also secured a certificate of stated costs against Government marked "LK 4(b)").
5. The Ex-Parte Applicant was assured that the arbitral award would be settled in due time after it was established that the Ex-Parte applicant had a genuine pending bill owed to him but the same was remains unsettled per the pending Bills Closing Committee audit.
6. Reliance is placed in the case of Republic v Attorney General Ex Partes Miriam Wairimu Wambugu & another [2021] eKLR the learned Judge placed reliance on the holding in Republic vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) where Githua J. held as follows:
“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 27 (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."
7. In 2018, a committee on pending bills was formed to evaluate the genuine and non-genuine unsettled bills, that on 30th April 2018 the applicant wrote to the said committee upon evaluation established that our client was genuine, however despite there being payments made in 2018 and in 2019, their claim was not settled or even partial payment made.
8. The applicant has made numerous requests to the Respondents Advocates to have this matter settled.
9. On 27th August 2020, the Respondents were duly served with a certificate of order.
10. Reliance is also placed in SEC & M Company Limited vs. County Secretary, County Government of Narok & another [20171 eKLR in explaining immunity against execution against the government, Odunga J held that;
“it is therefore clear that apart from the fact of the existence of a judgement against the government, the law recognises that due to the special role played and the central position held by the Government both national and county in the management of the affairs of the country. there is a necessity for further proceedings to be undertaken before the judgement can be implemented. However, where a party has complied with all the procedures leading to the grant of an order of mandamus, to subject the party to the normal civil law procedures would engender a miscarriage of justice yet Article 159(2)(b) mandates that justice ought not to be delayed. To take a successful litigant in circles when adequate notices have been given to the Government to settle a decree would be to turn the legal process into a theatre of the absurd. The procedure subsequent to the issuance of the decree and order in my view is meant to facilitate the settlement of the amount due from the Government without ambush. Otherwise the liability of the Government accrues once the decision is made against the Government. It is only that such liability cannot be enforced unless and until certain legal steps are taken in that direction. In other words there is no bar to the Government settling a decree as soon as the judgement is delivered for the same. In fact, it is my view that the Government ought to do so in order to save the tax-payer further burden in form of interest. In my view, the immunity extended to the Government against the turbulence of execution is meant to be used in good faith and is not meant to insulate or shield the Government from meeting its legal obligations owed to the citizenry or third parties.
The 1st and 2nd Respondents’ Case
11. The Application is opposed. It is their case that that the ex-parte Applicant only took out these judicial proceedings as a tool for execution for the alleged arbitral award. Before a mandamus order is issued, there must have been a demand for payment to the relevant department(s) or rather demand for action and refusal which is not exhibited in this case and no annexure provided therein.
12. Reliance is placed in Republic vs Kenya National Examinations Council ex-parte Gather and 9 Others, [1997] e KLR and held as hereunder; -
“The next issue we must deal with is this: What is the scope and efficacy of an ORDER OF MANDAMUS? Once again, we turn to HALSBURY'S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89. That learned treatise says: -
“The order of mandamus is of a most extensive remedial nature, and is, in form, 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."
13. At paragraph 90 headed "the mandate" it is stated:
“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”
What do these principles mean? They mean that an order of mandamus will compel 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....”
14. The court in Republic vs Permanent Secretary, Ministry of State for Provincial administration and Internal Security Exparte Fredrick Manoah Equnza(supra) stated as hereunder:
“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."
15. The Respondents cited herein argue that they were not aware of the suits from which the Decree and Certificate of Order arose. They were not notified of the judgment and/or given adequate time to consider satisfying the decree.
16. It is their case that the matter giving rise to this application and the proceedings thereto were filed and determined before the current 1st Respondent came to office, hence, is unaware and ought to be fully notified before such an application is filed.
17. According to the Respondents, an application for an order of mandamus seeking an order compelling the Government to satisfy a decree is a very elaborate procedure. Before the Court issues such an order, there must be proof that the provisions of the Government Proceedings Act have been complied with respect to issuance of certificate of costs and certificate of order against the Government.
After the issuance of the aforesaid documents, just like in any application for mandamus, there must be a demand for payment made by or on behalf of the decree holder to the relevant department seeking payment since in an application for an order of mandamus, the law as a general rule requires a demand by the applicant for action and refusal as a prerequisite to the granting of an order
18. They argue that the Ex-parte Applicant is in breach of the provisions of Section 21 of the Government procedure Act hence is not deserve the orders sought. Order 29 of the Civil Procedure Rules, 2010 and Section 21 of the Government Proceedings Act, Cap 40 is to give adequate time to the Government to pay and it is clear in this case that Respondents were never granted sufficient time to consider the claim hence cannot be said to have refused to pay the amount claimed, for these proceedings to be necessary.
19. The Respondents argue that the sum in question and/or in dispute is such a large sum and the Respondents herein shall be highly prejudiced if the order sought for herein is granted.
20. Reliance is further placed in Kisya Investments Ltd vs. Attorney General (2005) 1 KLR 74 thus: -
a) Firstly, there has been a policy in respect of Parliamentary control over revenue and this is threefold and is exercised in respect of (i). The raising of revenue - (by taxation or borrowing); (ii). Its expenditure; and (iii). The audit of Public accounts. The satisfaction of decrees or judgments is deemed to be an expenditure by Parliament and as a result of this must be justified in law and provided for in the Government's expenditure. It is for this reason that section 32 of the Government Proceedings Act provides that any expenditure incurred by or on behalf of the Government by reasons of this Act shall be defrayed out of the moneys provided by Parliament. Parliamentary control over expenditure is based upon the principle that all expenditure must rest upon legislative authority and no payment out of public funds is legal unless it is authorized by statute, and any unauthorized payment may be recovered. SEE HALSBURY'S LAW OF ENGALAND 4' EDN VOL. 11 PARA 970, 971 AND 1370. As a result of the foregoing, which was borrowed from the Crown proceedings Act, 1974 (section 37) of England, this is a warning that any payment by Government must be covered by some appropriation. It is said that Parliament is very jealous of its control over the expenditure and this is as it should be. No ministry or Department has any ready funds at all times to satisfy decrees or judgments. While existence of claims and decrees may be known to the Ministries and Departments, they have to notify the Ministry of Finance and Treasury of the same so that payment is arranged for or provisions made in the Government expenditure. SEE AUCKLAND HARBOUR BOARD VS. R (1924) AC 318, 326.
b) The second situation, which arises from the above, is that once a decree or judgment is obtained against the Government, it would require some reasonable time to have it.
c) forwarded to the ministry of Finance, Treasury, Comptroller and Auditor General etc for scrutiny and approvals for it to be paid from the Consolidated Fund. The Ministries and Departments do not have their "own" funds to settle such decrees or payments and considering the nature of the Government structure, procedures, red tape and large number of claims, this could take a long time. If execution and / or attachment against the Government were allowed, there is no doubt that the Government will not be able to pay immediately upon passing of decrees and judgments and will be inundated with executions and attachments of its assets day in, day out. Its buildings will be attached and its plants and equipment will be attached, its furniture and office equipment will be attached, its vehicles, aircraft, ship and boats will be attached. There will be no end to the list of likely assets to be attached and auctioned by the auctioneer's hammer. No Government can possibly survive such an onslaught. The Government and therefore the state operations will ground to a halt and paralyzed and soon the Government will not only be bankrupt but it's Constitutional and Statutory duties will not be capable of performance and this will lead to chaos, anarchy and the breakdown of the Rule of Law. This is the rationale or the objective of the law that prohibits execution against and attachment of the Government assets and property."
21. The Respondents argue that it will be highly prejudicial if an order of mandamus is issued at this stage without affording the Respondent reasonable time to scrutinize all the documents and communicate to the relevant departments which could have been earlier notified for payment of the due amount.
ANALYSIS AND DETERMINATION:
22. Upon considering the arguments advanced by the parties I find the issue for determination is whether the Applicant has made out a case for the grant of the orders sought.
23. 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 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.”
24. 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.”
25. Githua, J in Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR while dealing with the said provisions expressed herself as follows:
“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.”
26. In Republic v The Attorney General & Another ex parte James Alfred Koroso (2013) eKLR, cited with approval the case of Shah v Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543 Goudie, J expressed himself, inter alia, as follows:
“Mandamus is essentially English in its origin and development and it is therefore logical that the court should look for an English definition. Mandamus is a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent. Thus, it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual. Mandamus is neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do or not to do something; the duty itself being of an imperative nature… In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fulfilment of which some other person has an interest the court has jurisdiction to grant mandamus to compel the fulfilment…The foregoing may also be thought to be much in point in relation to the applicant’s unsatisfied judgement which has been rendered valueless by the refusal of the Treasury Officer of Accounts to perform his statutory duty under section 20(3) of the Government Proceedings Act. It is perhaps hardly necessary to add that the applicant has very much of an interest in the fulfilment of that duty…Since mandamus originated and was developed under English law it seems reasonable to assume that when the legislature in Uganda applied it to Uganda they intended it to be governed by English law in so far as this was not inconsistent with Uganda law. Uganda, being a sovereign State, the Court is not bound by English law but the court considers the English decisions must be of strong persuasive weight and afford guidance in matters not covered by Uganda law…English authorities are overwhelmingly to the effect that no order can be made against the State as such or against a servant of the State when he is acting “simply in his capacity of servant”. There are no doubt cases where servants of the Crown have been constituted by Statute agents to do particular acts, and in these cases a mandamus would lie against them as individuals designated to do those acts. Therefore, where government officials have been constituted agents for carrying out particular duties in relation to subjects, whether by royal charter, statute, or common law, so that they are under a legal obligation towards those subjects, an order of mandamus will lie for the enforcement of the duties…With regard to the question whether mandamus will lie, that case falls within the class of cases when officials have a public duty to perform, and having refused to perform it, mandamus will lie on the application of a person interested to compel them to do so. It is no doubt difficult to draw the line, and some of the cases are not easy to reconcile… It seems to be an illogical argument that the Government Accounting Officer cannot be compelled to carry out a statutory duty specifically imposed by Parliament out of funds which Parliament itself has said in section 29(1) of the Government Proceedings Act shall be provided for the purpose. There is nothing in the said Act itself to suggest that this duty is owed solely to the Government….Whereas mandamus may be refused where there is another appropriate remedy, there is no discretion to withhold mandamus if no other remedy remains. When there is no specific remedy, the court will grant a mandamus that justice may be done. The construction of that sentence is this: where there is no specific remedy and by reason of the want of specific remedy justice cannot be done unless a mandamus is to go, then mandamus will go… In the present case it is conceded that if mandamus was refused, there was no other legal remedy open to the applicant. It was also admitted that there were no alternative instructions as to the manner in which, if at all, the Government proposed to satisfy the applicant’s decree. It is sufficient for the duty to be owed to the public at large. The prosecutor of the writ of mandamus must be clothed with a clear legal right to something which is properly the subject of the writ, or a legal right by virtue of an Act of Parliament… In the court’s view the granting of mandamus against the Government would not be to give any relief against the Government which could not have been obtained in proceedings against the Government contrary to section 15(2) of the Government Proceedings Act. What the applicant is seeking is not relief against the Government but to compel a Government official to do what the Government, through Parliament, has directed him to do. Likewise, there is nothing in section 20(4) of the Act to prevent the making of such order. The subsection commences with the proviso “save as is provided in this section”. The relief sought arises out of subsection (3), and is not “execution or attachment or process in the nature thereof”. It is not sought to make any person “individually liable for any order for any payment” but merely to oblige a Government officer to pay, out of the funds provided by Parliament, a debt held to be due by the High Court, in accordance with a duty cast upon him by Parliament. The fact that the Treasury Officer of Accounts is not distinct from the State of which he is a servant does not necessarily mean that he cannot owe a duty to a subject as well as to the Government which he serves. Whereas it is true that he represents the Government, it does not follow that his duty is therefore confined to his Government employer. In mandamus cases it is recognised that when statutory duty is cast upon a Crown servant in his official capacity and the duty is owed not to the Crown but to the public any person having a sufficient legal interest in the performance of the duty may apply to the Courts for an order of mandamus to enforce it. Where a duty has been directly imposed by Statute for the benefit of the subject upon a Crown servant as persona designata, and the duty is to be wholly discharged by him in his official capacity, as distinct from his capacity as an adviser to or an instrument of the Crown, the Courts have shown readiness to grant applications for mandamus by persons who have a direct and substantial interest in securing the performance of the duty. It would be going too far to say that whenever a statutory duty is directly cast upon a Crown servant that duty is potentially enforceable by mandamus on the application of a member of the public for the context may indicate that the servant is to act purely as an adviser to or agent of the Crown, but the situations in which mandamus will not lie for this reason alone are comparatively few…Mandamus does not lie against a public officer as a matter of course. The courts are reluctant to direct a writ of mandamus against executive officers of a government unless some specific act or thing which the law requires to be done has been omitted. Courts should proceed with extreme caution for the granting of the writ which would result in the interference by the judicial department with the management of the executive department of the government. The Courts will not intervene to compel an action by an executive officer unless his duty to act is clearly established and plainly defined and the obligation to act is peremptory…On any reasonable interpretation of the duty of the Treasury Officer of Accounts under section 20(3) of the Act it cannot be argued that his duty is merely advisory, he is detailed as persona designate to act for the benefit of the subject rather than a mere agent of Government, his duty is clearly established and plainly defined, and the obligation to act is peremptory. It may be that they are answerable to the Crown but they are answerable to the subject…The court should take into account a wide variety of circumstances, including the exigency which calls for the exercise of its discretion, the consequences of granting it, and the nature and extent of the wrong or injury which could follow a refusal and it may be granted or refused depending on whether or not it promotes substantial justice… The issue of discretion depends largely on whether or not one should, or indeed can, look behind the judgement giving rise to the applicant’s decree. Therefore, an order of mandamus will issue as prayed with costs.” [Emphasis added].
27. The circumstances under which judicial review order of mandamus are issued were set out in 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 Edn. Vol. 7 p. 111 para 89 thus:
“The order of mandamus is of most extensive remedial nature and is in form, 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.”
28. A ruling was delivered on 11th May, 2018 in the applicants favour in the following terms: -
a) That the Applicant herein be granted leave to enforce as a decree of this Honourable Court, the Arbitrator's Final Award dated, made and published on 23rd March, 2016.The Applicant was thereafter issued with a decree by the court on 24th July, 2018.
29. The Applicant has proven its case through a Decree, a certificate of order, certificate of costs,a certificate taxation and that it made a demand for the payment of the amount due. The Respondents have not given any satisfactory reason why the decree has not been satisfied.
30. The Respondents argue that they were not aware of the suits from which the Decree and Certificate of Order arose and that they were not notified of the judgment and/or given adequate time to consider satisfying the decree.
31. The Respondents are not denying the existence of these documents. What they are asking for is reasonable time to scrutinize all the documents and communicate to the relevant departments.
32. If the Court were to decline to grant mandamus, the Applicant would be left without an effective remedy despite holding a decree.
Disposition;
33. The Applicant has made out a case that it is entitled to the orders sought.
Order;
The application dated 13th October 2023 is allowed with costs.
Dated, Signed, and Delivered at Nairobi this 4th Day of April 2024.
………………………………………
J. CHIGITI (SC)
JUDGE
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
JR. Misc.NO. E039 OF 2023
IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF MANDAMUS
IN THE MATTER OF: THE CONSTITUTION OF KENYA, 2010
IN THE MATTER OF: ENFORCEMENT OF DECREE IN THE HIGH COURT OF KENYA AT NAIROBI, MILIMANI LAW COURTS, COMMERCIAL AND TAX DIVISION, HC MISC. APPLICATION NO 303 OF 2017
BETWEEN
REPUBLIC …………………………………….……………………APPLICANT
VERSUS
THE COUNTY SECRETARY ………………………..1ST RESPONDENT
NAIROBI COUNTY GOVERNMENT ……………..2ND RESPONDENT
AND
LATIS CONSTRUCTION LIMITED ………...EX-PARTE APPLICANT
JUDGMENT
1. Through application the application dated 13th October 2023 the applicant is seeking the following orders.
a) THAT an order of mandamus be issued directed at the County Secretary, Nairobi County Government in the Republic of Kenya compelling him to satisfy the decree issued by the High Court, Miscellaneous Cause No. 303 of 2017, LATIS CONSTRUCTION LIMITED —VS--- THE COUNTY SECRETARY, NAIROBI COUNTY GOVERNMENT & ANOTHER being payment of Kenya Shillings One Hundred and Thirty-Six Million, Two Hundred and Sixteen Thousand, Four Hundred and Forty-Seven and Forty-Four Cents (Kshs. 136,216,447.44) as per the Certificate of Order against the Government dated 20th August 2020, with interest thereafter levied at the decreed rate of 18% per annum till payment in full.
b) THAT costs of and incidental to this application be provided for.
The Ex-Parte Applicant’s Case
2. The Ex-Parte Applicant filed a suit against the Respondents on 23rd March 2016 in High Court Miscellaneous Cause No. 303 of 2017 seeking leave to enforce an Arbitral award made and published on 23rd March, 2016 in the sum of Kenya Shillings One Hundred and Thirty-Six Million, Two Hundred and Sixteen Thousand, Four Hundred and Forty-Seven and Forty-Four Cents. (Kes. 136,216,447.44) as per the Certificate of Order against Government issued on 20th August 2020.
3. The Ex-Parte Applicant provided evidence that demands were made to the Respondent vide a letter dated 27th August 2020 in which the Certificate of Order as attached.
4. The Applicant filed an application against the Respondents herein and the matter proceeded for hearing on 26th September 2017. A ruling was delivered on 11th May, 2018 in the applicants favour in the following terms: -
a) That the Applicant herein be granted leave to enforce as a decree of this Honourable Court, the Arbitrator's Final Award dated, made and published on 23rd March, 2016.
The Applicant was issued with a decree by the court on 24th July, 2018 being "LK 3".
A certificate of taxation was issued on 24th December 2018 as annexure “LK 4(a)".
The Applicant also secured a certificate of stated costs against Government marked "LK 4(b)").
5. The Ex-Parte Applicant was assured that the arbitral award would be settled in due time after it was established that the Ex-Parte applicant had a genuine pending bill owed to him but the same was remains unsettled per the pending Bills Closing Committee audit.
6. Reliance is placed in the case of Republic v Attorney General Ex Partes Miriam Wairimu Wambugu & another [2021] eKLR the learned Judge placed reliance on the holding in Republic vs Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) where Githua J. held as follows:
“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 27 (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."
7. In 2018, a committee on pending bills was formed to evaluate the genuine and non-genuine unsettled bills, that on 30th April 2018 the applicant wrote to the said committee upon evaluation established that our client was genuine, however despite there being payments made in 2018 and in 2019, their claim was not settled or even partial payment made.
8. The applicant has made numerous requests to the Respondents Advocates to have this matter settled.
9. On 27th August 2020, the Respondents were duly served with a certificate of order.
10. Reliance is also placed in SEC & M Company Limited vs. County Secretary, County Government of Narok & another [20171 eKLR in explaining immunity against execution against the government, Odunga J held that;
“it is therefore clear that apart from the fact of the existence of a judgement against the government, the law recognises that due to the special role played and the central position held by the Government both national and county in the management of the affairs of the country. there is a necessity for further proceedings to be undertaken before the judgement can be implemented. However, where a party has complied with all the procedures leading to the grant of an order of mandamus, to subject the party to the normal civil law procedures would engender a miscarriage of justice yet Article 159(2)(b) mandates that justice ought not to be delayed. To take a successful litigant in circles when adequate notices have been given to the Government to settle a decree would be to turn the legal process into a theatre of the absurd. The procedure subsequent to the issuance of the decree and order in my view is meant to facilitate the settlement of the amount due from the Government without ambush. Otherwise the liability of the Government accrues once the decision is made against the Government. It is only that such liability cannot be enforced unless and until certain legal steps are taken in that direction. In other words there is no bar to the Government settling a decree as soon as the judgement is delivered for the same. In fact, it is my view that the Government ought to do so in order to save the tax-payer further burden in form of interest. In my view, the immunity extended to the Government against the turbulence of execution is meant to be used in good faith and is not meant to insulate or shield the Government from meeting its legal obligations owed to the citizenry or third parties.
The 1st and 2nd Respondents’ Case
11. The Application is opposed. It is their case that that the ex-parte Applicant only took out these judicial proceedings as a tool for execution for the alleged arbitral award. Before a mandamus order is issued, there must have been a demand for payment to the relevant department(s) or rather demand for action and refusal which is not exhibited in this case and no annexure provided therein.
12. Reliance is placed in Republic vs Kenya National Examinations Council ex-parte Gather and 9 Others, [1997] e KLR and held as hereunder; -
“The next issue we must deal with is this: What is the scope and efficacy of an ORDER OF MANDAMUS? Once again, we turn to HALSBURY'S LAW OF ENGLAND, 4th Edition Volume 1 at page 111 FROM PARAGRAPH 89. That learned treatise says: -
“The order of mandamus is of a most extensive remedial nature, and is, in form, 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."
13. At paragraph 90 headed "the mandate" it is stated:
“The order must command no more than the party against whom the application is made is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way.”
What do these principles mean? They mean that an order of mandamus will compel 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....”
14. The court in Republic vs Permanent Secretary, Ministry of State for Provincial administration and Internal Security Exparte Fredrick Manoah Equnza(supra) stated as hereunder:
“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."
15. The Respondents cited herein argue that they were not aware of the suits from which the Decree and Certificate of Order arose. They were not notified of the judgment and/or given adequate time to consider satisfying the decree.
16. It is their case that the matter giving rise to this application and the proceedings thereto were filed and determined before the current 1st Respondent came to office, hence, is unaware and ought to be fully notified before such an application is filed.
17. According to the Respondents, an application for an order of mandamus seeking an order compelling the Government to satisfy a decree is a very elaborate procedure. Before the Court issues such an order, there must be proof that the provisions of the Government Proceedings Act have been complied with respect to issuance of certificate of costs and certificate of order against the Government.
After the issuance of the aforesaid documents, just like in any application for mandamus, there must be a demand for payment made by or on behalf of the decree holder to the relevant department seeking payment since in an application for an order of mandamus, the law as a general rule requires a demand by the applicant for action and refusal as a prerequisite to the granting of an order
18. They argue that the Ex-parte Applicant is in breach of the provisions of Section 21 of the Government procedure Act hence is not deserve the orders sought. Order 29 of the Civil Procedure Rules, 2010 and Section 21 of the Government Proceedings Act, Cap 40 is to give adequate time to the Government to pay and it is clear in this case that Respondents were never granted sufficient time to consider the claim hence cannot be said to have refused to pay the amount claimed, for these proceedings to be necessary.
19. The Respondents argue that the sum in question and/or in dispute is such a large sum and the Respondents herein shall be highly prejudiced if the order sought for herein is granted.
20. Reliance is further placed in Kisya Investments Ltd vs. Attorney General (2005) 1 KLR 74 thus: -
a) Firstly, there has been a policy in respect of Parliamentary control over revenue and this is threefold and is exercised in respect of (i). The raising of revenue - (by taxation or borrowing); (ii). Its expenditure; and (iii). The audit of Public accounts. The satisfaction of decrees or judgments is deemed to be an expenditure by Parliament and as a result of this must be justified in law and provided for in the Government's expenditure. It is for this reason that section 32 of the Government Proceedings Act provides that any expenditure incurred by or on behalf of the Government by reasons of this Act shall be defrayed out of the moneys provided by Parliament. Parliamentary control over expenditure is based upon the principle that all expenditure must rest upon legislative authority and no payment out of public funds is legal unless it is authorized by statute, and any unauthorized payment may be recovered. SEE HALSBURY'S LAW OF ENGALAND 4' EDN VOL. 11 PARA 970, 971 AND 1370. As a result of the foregoing, which was borrowed from the Crown proceedings Act, 1974 (section 37) of England, this is a warning that any payment by Government must be covered by some appropriation. It is said that Parliament is very jealous of its control over the expenditure and this is as it should be. No ministry or Department has any ready funds at all times to satisfy decrees or judgments. While existence of claims and decrees may be known to the Ministries and Departments, they have to notify the Ministry of Finance and Treasury of the same so that payment is arranged for or provisions made in the Government expenditure. SEE AUCKLAND HARBOUR BOARD VS. R (1924) AC 318, 326.
b) The second situation, which arises from the above, is that once a decree or judgment is obtained against the Government, it would require some reasonable time to have it.
c) forwarded to the ministry of Finance, Treasury, Comptroller and Auditor General etc for scrutiny and approvals for it to be paid from the Consolidated Fund. The Ministries and Departments do not have their "own" funds to settle such decrees or payments and considering the nature of the Government structure, procedures, red tape and large number of claims, this could take a long time. If execution and / or attachment against the Government were allowed, there is no doubt that the Government will not be able to pay immediately upon passing of decrees and judgments and will be inundated with executions and attachments of its assets day in, day out. Its buildings will be attached and its plants and equipment will be attached, its furniture and office equipment will be attached, its vehicles, aircraft, ship and boats will be attached. There will be no end to the list of likely assets to be attached and auctioned by the auctioneer's hammer. No Government can possibly survive such an onslaught. The Government and therefore the state operations will ground to a halt and paralyzed and soon the Government will not only be bankrupt but it's Constitutional and Statutory duties will not be capable of performance and this will lead to chaos, anarchy and the breakdown of the Rule of Law. This is the rationale or the objective of the law that prohibits execution against and attachment of the Government assets and property."
21. The Respondents argue that it will be highly prejudicial if an order of mandamus is issued at this stage without affording the Respondent reasonable time to scrutinize all the documents and communicate to the relevant departments which could have been earlier notified for payment of the due amount.
ANALYSIS AND DETERMINATION:
22. Upon considering the arguments advanced by the parties I find the issue for determination is whether the Applicant has made out a case for the grant of the orders sought.
23. 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 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.”
24. 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.”
25. Githua, J in Republic v Permanent Secretary, Ministry of State for Provincial Administration and Internal Security Ex parte Fredrick Manoah Egunza [2012] eKLR while dealing with the said provisions expressed herself as follows:
“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.”
26. In Republic v The Attorney General & Another ex parte James Alfred Koroso (2013) eKLR, cited with approval the case of Shah v Attorney General (No. 3) Kampala HCMC No. 31 of 1969 [1970] EA 543 Goudie, J expressed himself, inter alia, as follows:
“Mandamus is essentially English in its origin and development and it is therefore logical that the court should look for an English definition. Mandamus is a prerogative order issued in certain cases to compel the performance of a duty. It issues from the Queen’s Bench Division of the English High Court where the injured party has a right to have anything done, and has no other specific means of compelling its performance, especially when the obligation arises out of the official status of the respondent. Thus, it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual. Mandamus is neither a writ of course nor of right, but it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do or not to do something; the duty itself being of an imperative nature… In cases where there is a duty of a public or quasi-public nature, or a duty imposed by statute, in the fulfilment of which some other person has an interest the court has jurisdiction to grant mandamus to compel the fulfilment…The foregoing may also be thought to be much in point in relation to the applicant’s unsatisfied judgement which has been rendered valueless by the refusal of the Treasury Officer of Accounts to perform his statutory duty under section 20(3) of the Government Proceedings Act. It is perhaps hardly necessary to add that the applicant has very much of an interest in the fulfilment of that duty…Since mandamus originated and was developed under English law it seems reasonable to assume that when the legislature in Uganda applied it to Uganda they intended it to be governed by English law in so far as this was not inconsistent with Uganda law. Uganda, being a sovereign State, the Court is not bound by English law but the court considers the English decisions must be of strong persuasive weight and afford guidance in matters not covered by Uganda law…English authorities are overwhelmingly to the effect that no order can be made against the State as such or against a servant of the State when he is acting “simply in his capacity of servant”. There are no doubt cases where servants of the Crown have been constituted by Statute agents to do particular acts, and in these cases a mandamus would lie against them as individuals designated to do those acts. Therefore, where government officials have been constituted agents for carrying out particular duties in relation to subjects, whether by royal charter, statute, or common law, so that they are under a legal obligation towards those subjects, an order of mandamus will lie for the enforcement of the duties…With regard to the question whether mandamus will lie, that case falls within the class of cases when officials have a public duty to perform, and having refused to perform it, mandamus will lie on the application of a person interested to compel them to do so. It is no doubt difficult to draw the line, and some of the cases are not easy to reconcile… It seems to be an illogical argument that the Government Accounting Officer cannot be compelled to carry out a statutory duty specifically imposed by Parliament out of funds which Parliament itself has said in section 29(1) of the Government Proceedings Act shall be provided for the purpose. There is nothing in the said Act itself to suggest that this duty is owed solely to the Government….Whereas mandamus may be refused where there is another appropriate remedy, there is no discretion to withhold mandamus if no other remedy remains. When there is no specific remedy, the court will grant a mandamus that justice may be done. The construction of that sentence is this: where there is no specific remedy and by reason of the want of specific remedy justice cannot be done unless a mandamus is to go, then mandamus will go… In the present case it is conceded that if mandamus was refused, there was no other legal remedy open to the applicant. It was also admitted that there were no alternative instructions as to the manner in which, if at all, the Government proposed to satisfy the applicant’s decree. It is sufficient for the duty to be owed to the public at large. The prosecutor of the writ of mandamus must be clothed with a clear legal right to something which is properly the subject of the writ, or a legal right by virtue of an Act of Parliament… In the court’s view the granting of mandamus against the Government would not be to give any relief against the Government which could not have been obtained in proceedings against the Government contrary to section 15(2) of the Government Proceedings Act. What the applicant is seeking is not relief against the Government but to compel a Government official to do what the Government, through Parliament, has directed him to do. Likewise, there is nothing in section 20(4) of the Act to prevent the making of such order. The subsection commences with the proviso “save as is provided in this section”. The relief sought arises out of subsection (3), and is not “execution or attachment or process in the nature thereof”. It is not sought to make any person “individually liable for any order for any payment” but merely to oblige a Government officer to pay, out of the funds provided by Parliament, a debt held to be due by the High Court, in accordance with a duty cast upon him by Parliament. The fact that the Treasury Officer of Accounts is not distinct from the State of which he is a servant does not necessarily mean that he cannot owe a duty to a subject as well as to the Government which he serves. Whereas it is true that he represents the Government, it does not follow that his duty is therefore confined to his Government employer. In mandamus cases it is recognised that when statutory duty is cast upon a Crown servant in his official capacity and the duty is owed not to the Crown but to the public any person having a sufficient legal interest in the performance of the duty may apply to the Courts for an order of mandamus to enforce it. Where a duty has been directly imposed by Statute for the benefit of the subject upon a Crown servant as persona designata, and the duty is to be wholly discharged by him in his official capacity, as distinct from his capacity as an adviser to or an instrument of the Crown, the Courts have shown readiness to grant applications for mandamus by persons who have a direct and substantial interest in securing the performance of the duty. It would be going too far to say that whenever a statutory duty is directly cast upon a Crown servant that duty is potentially enforceable by mandamus on the application of a member of the public for the context may indicate that the servant is to act purely as an adviser to or agent of the Crown, but the situations in which mandamus will not lie for this reason alone are comparatively few…Mandamus does not lie against a public officer as a matter of course. The courts are reluctant to direct a writ of mandamus against executive officers of a government unless some specific act or thing which the law requires to be done has been omitted. Courts should proceed with extreme caution for the granting of the writ which would result in the interference by the judicial department with the management of the executive department of the government. The Courts will not intervene to compel an action by an executive officer unless his duty to act is clearly established and plainly defined and the obligation to act is peremptory…On any reasonable interpretation of the duty of the Treasury Officer of Accounts under section 20(3) of the Act it cannot be argued that his duty is merely advisory, he is detailed as persona designate to act for the benefit of the subject rather than a mere agent of Government, his duty is clearly established and plainly defined, and the obligation to act is peremptory. It may be that they are answerable to the Crown but they are answerable to the subject…The court should take into account a wide variety of circumstances, including the exigency which calls for the exercise of its discretion, the consequences of granting it, and the nature and extent of the wrong or injury which could follow a refusal and it may be granted or refused depending on whether or not it promotes substantial justice… The issue of discretion depends largely on whether or not one should, or indeed can, look behind the judgement giving rise to the applicant’s decree. Therefore, an order of mandamus will issue as prayed with costs.” [Emphasis added].
27. The circumstances under which judicial review order of mandamus are issued were set out in 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 Edn. Vol. 7 p. 111 para 89 thus:
“The order of mandamus is of most extensive remedial nature and is in form, 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.”
28. A ruling was delivered on 11th May, 2018 in the applicants favour in the following terms: -
a) That the Applicant herein be granted leave to enforce as a decree of this Honourable Court, the Arbitrator's Final Award dated, made and published on 23rd March, 2016.The Applicant was thereafter issued with a decree by the court on 24th July, 2018.
29. The Applicant has proven its case through a Decree, a certificate of order, certificate of costs,a certificate taxation and that it made a demand for the payment of the amount due. The Respondents have not given any satisfactory reason why the decree has not been satisfied.
30. The Respondents argue that they were not aware of the suits from which the Decree and Certificate of Order arose and that they were not notified of the judgment and/or given adequate time to consider satisfying the decree.
31. The Respondents are not denying the existence of these documents. What they are asking for is reasonable time to scrutinize all the documents and communicate to the relevant departments.
32. If the Court were to decline to grant mandamus, the Applicant would be left without an effective remedy despite holding a decree.
Disposition;
33. The Applicant has made out a case that it is entitled to the orders sought.
Order;
The application dated 13th October 2023 is allowed with costs.
Dated, Signed, and Delivered at Nairobi this 4th Day of April 2024.
………………………………………
J. CHIGITI (SC)
JUDGE