1. The application before court is a motion dated 18 June 2024 expressed to be brought under Order 53 Rule 3 of the Civil Procedure Rules 2010. The applicant seeks the following orders:
“1. This Honourable Court be hereby pleased to grant an Order of Mandamus against the County Secretary, Nairobi City County and the Chief Officer, Finance/County Treasurer of the 1st Respondent, compelling them to pay the Ex-Parte Applicant, within 14 days of the Orders hereof, the sum of KES 2,073,285 together with accrued interest at a rate of 14% from the date of filing the suit in Nairobi CMCC No. E427 of 2022 on 25 May 2022 until payment in full plus costs of KES 172,074.09 with accrued interest of 14%.
2. This Honourable Court be hereby pleased to grant an Order of Mandamus against the accounting officer of the 2nd Respondent compelling them to pay the Ex-Parte Applicant, within 14 days of the Orders hereof, the sum of KES 2,073,285 together with accrued interest at a rate of 14% from the date of filing the suit in Nairobi CMCC No. E427 of 2022 on 25 May 2022 until payment in full plus costs of KES 172,074.09 with accrued interest of 14%.
3. This Honourable Court be hereby pleased to award the Ex-Parte Applicant general damages against the Respondents.
4. Any other and further relief that this Honourable Court may deem fit and just to grant in the circumstances.”
2. The application is based on a statutory statement dated 28 May 2024 and an affidavit verifying the facts relied upon sworn on even date by Mr. Michael Mwangi. Mr. Mwangi has sworn that he is the Head of Finance and Investments of the applicant.
3. On 25 May 2022, the applicant filed a suit against the respondents, being Nairobi Chief Magistrates Court Civil Case No. E427 of 2022: Mission for Essential Drugs and Supplies Versus Nairobi City County Government and Mbagathi County Hospital.
4. The suit was not contested and so on 16 August 2023, the applicant requested for judgment in default of appearance. On 10 January 2023, the court entered judgment in favour of the applicant against the respondents for a sum of Kshs. 2,073,285.00 with interest at court rates from the date of filing suit until full payment.
5. By a certificate of costs issued on 16 February 2023 the court assessed and taxed party and party costs at KES 172,074.09. On 5 March 2024, a certificate of order and a certificate of order for costs against the Government was issued by the magistrate. The applicant subsequently issued a demand for payment, more particularly on 8 March 2024, but to date the respondents have failed, neglected or ignored to settle the decree. It is for this reason that the applicant seeks the order for mandamus.
Despite having been served with the application, the respondents did not file any response to contest it.
6. It is not in doubt that execution or attachment of property is one of the ways through which decrees or orders are enforced. But the Government is protected from such process of execution or attachment or other similar process in enforcement of decrees or orders. This protection is encapsulated in section 21 of the Government Proceedings Act, in particular, section 21(4) thereof. That section reads as follows:
21. Satisfaction of orders against the Government
(1) Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:
Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.
(2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.
(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:
Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.
(4) Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.
(5) This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.
7. In the face of this protection from execution or attachment, the only available route open to the applicant is to compel the County Government of Nairobi’s accounting officer to perform his statutory duty under section 21(3) of the Act and pay what has been decreed as due and owing to the applicant. In other words, only the order of mandamus would be the appropriate order in the circumstances.
8. The 2nd respondent has been described in the statutory statement as “a public health facility operating under the 1st respondent’s Department of Health Services”. From this description, the 2nd respondent is merely the 1st respondent’s facility and, therefore, it would be of no consequence to direct the order of mandamus against it.
9. The order of mandamus has been defined in Halsbury's Laws of England/JUDICIAL REVIEW (VOLUME 61 (2010) 5TH EDITION)/5. JUDICIAL REMEDIES/ (1) INTRODUCTION at paragraph 689 where it is stated, thus:
“A mandatory order is, in form, a command issuing from the High Court, directed to any person, corporation or inferior tribunal requiring him, or them, to do some particular thing specified in the command which appertains to his or their office and is in the nature of a public duty (See Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 1 All ER 694, HL). The breach of duty may be a failure to exercise a discretion, or a failure to exercise it according to proper legal principles.”
This is reiterated in paragraph 703 which states:
“A mandatory order is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or it to do some particular thing specified in the order which appertains to his or its office and is in the nature of a public duty… the purpose of a mandatory order is to compel the performance of a public duty, whether of an inferior court or tribunal to exercise its jurisdiction, or that of an administrative body to fulfil its public law obligations. It is a discretionary remedy.”
10. And with particular reference to public officers who, like in the instant case, fail to perform their public duty, paragraph 706 is clear that a mandamus order may be issued to compel them to carry out the duty. It reads as follows:
“706. Public duties by government officials.
If public officials or public bodies fail to perform any public duty with which they have been charged, a mandatory (mandamus) order may be made to compel them to carry out the duty (See R v Metropolitan Police Comr, ex p Blackburn (No 3) [1973] QB 241, [1973] 1 All ER 324, CA; R v London Transport Executive, ex p GLC [1983] QB 484, [1983] 2 All ER 262, DC.)”
11. Besides service of the certificate of order against the Government, it is not contested that the applicant has complied with the rest of the conditions prescribed in section 21 of the Government Proceedings Act. To be precise, there is no evidence that the applicant defaulted in any other step prescribed under this provision of the law as to disentitle it to the order of mandamus.
12. A demand for payment having been made and the respondents having failed to pay, no other evidence is required to demonstrate that the 1st respondent’s accounting officer has failed to perform a public duty with which he or she is charged under section 21(3) of the Government Proceedings Act. A mandamus order would properly issue in such circumstances.
13. Accordingly, I allow the applicant’s application to the extent that the order of mandamus is hereby granted compelling the 1st respondent’s accounting officer in charge of finance, to pay the applicant in terms of the certificate of order against the government given on 5 June 2024. The applicant will also have costs of the application. It is so ordered.
“1. This Honourable Court be hereby pleased to grant an Order of Mandamus against the County Secretary, Nairobi City County and the Chief Officer, Finance/County Treasurer of the 1st Respondent, compelling them to pay the Ex-Parte Applicant, within 14 days of the Orders hereof, the sum of KES 2,073,285 together with accrued interest at a rate of 14% from the date of filing the suit in Nairobi CMCC No. E427 of 2022 on 25 May 2022 until payment in full plus costs of KES 172,074.09 with accrued interest of 14%.
2. This Honourable Court be hereby pleased to grant an Order of Mandamus against the accounting officer of the 2nd Respondent compelling them to pay the Ex-Parte Applicant, within 14 days of the Orders hereof, the sum of KES 2,073,285 together with accrued interest at a rate of 14% from the date of filing the suit in Nairobi CMCC No. E427 of 2022 on 25 May 2022 until payment in full plus costs of KES 172,074.09 with accrued interest of 14%.
3. This Honourable Court be hereby pleased to award the Ex-Parte Applicant general damages against the Respondents.
4. Any other and further relief that this Honourable Court may deem fit and just to grant in the circumstances.”
2. The application is based on a statutory statement dated 28 May 2024 and an affidavit verifying the facts relied upon sworn on even date by Mr. Michael Mwangi. Mr. Mwangi has sworn that he is the Head of Finance and Investments of the applicant.
3. On 25 May 2022, the applicant filed a suit against the respondents, being Nairobi Chief Magistrates Court Civil Case No. E427 of 2022: Mission for Essential Drugs and Supplies Versus Nairobi City County Government and Mbagathi County Hospital.
4. The suit was not contested and so on 16 August 2023, the applicant requested for judgment in default of appearance. On 10 January 2023, the court entered judgment in favour of the applicant against the respondents for a sum of Kshs. 2,073,285.00 with interest at court rates from the date of filing suit until full payment.
5. By a certificate of costs issued on 16 February 2023 the court assessed and taxed party and party costs at KES 172,074.09. On 5 March 2024, a certificate of order and a certificate of order for costs against the Government was issued by the magistrate. The applicant subsequently issued a demand for payment, more particularly on 8 March 2024, but to date the respondents have failed, neglected or ignored to settle the decree. It is for this reason that the applicant seeks the order for mandamus.
Despite having been served with the application, the respondents did not file any response to contest it.
6. It is not in doubt that execution or attachment of property is one of the ways through which decrees or orders are enforced. But the Government is protected from such process of execution or attachment or other similar process in enforcement of decrees or orders. This protection is encapsulated in section 21 of the Government Proceedings Act, in particular, section 21(4) thereof. That section reads as follows:
21. Satisfaction of orders against the Government
(1) Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:
Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.
(2) A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.
(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:
Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.
(4) Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.
(5) This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.
7. In the face of this protection from execution or attachment, the only available route open to the applicant is to compel the County Government of Nairobi’s accounting officer to perform his statutory duty under section 21(3) of the Act and pay what has been decreed as due and owing to the applicant. In other words, only the order of mandamus would be the appropriate order in the circumstances.
8. The 2nd respondent has been described in the statutory statement as “a public health facility operating under the 1st respondent’s Department of Health Services”. From this description, the 2nd respondent is merely the 1st respondent’s facility and, therefore, it would be of no consequence to direct the order of mandamus against it.
9. The order of mandamus has been defined in Halsbury's Laws of England/JUDICIAL REVIEW (VOLUME 61 (2010) 5TH EDITION)/5. JUDICIAL REMEDIES/ (1) INTRODUCTION at paragraph 689 where it is stated, thus:
“A mandatory order is, in form, a command issuing from the High Court, directed to any person, corporation or inferior tribunal requiring him, or them, to do some particular thing specified in the command which appertains to his or their office and is in the nature of a public duty (See Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, [1968] 1 All ER 694, HL). The breach of duty may be a failure to exercise a discretion, or a failure to exercise it according to proper legal principles.”
This is reiterated in paragraph 703 which states:
“A mandatory order is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or it to do some particular thing specified in the order which appertains to his or its office and is in the nature of a public duty… the purpose of a mandatory order is to compel the performance of a public duty, whether of an inferior court or tribunal to exercise its jurisdiction, or that of an administrative body to fulfil its public law obligations. It is a discretionary remedy.”
10. And with particular reference to public officers who, like in the instant case, fail to perform their public duty, paragraph 706 is clear that a mandamus order may be issued to compel them to carry out the duty. It reads as follows:
“706. Public duties by government officials.
If public officials or public bodies fail to perform any public duty with which they have been charged, a mandatory (mandamus) order may be made to compel them to carry out the duty (See R v Metropolitan Police Comr, ex p Blackburn (No 3) [1973] QB 241, [1973] 1 All ER 324, CA; R v London Transport Executive, ex p GLC [1983] QB 484, [1983] 2 All ER 262, DC.)”
11. Besides service of the certificate of order against the Government, it is not contested that the applicant has complied with the rest of the conditions prescribed in section 21 of the Government Proceedings Act. To be precise, there is no evidence that the applicant defaulted in any other step prescribed under this provision of the law as to disentitle it to the order of mandamus.
12. A demand for payment having been made and the respondents having failed to pay, no other evidence is required to demonstrate that the 1st respondent’s accounting officer has failed to perform a public duty with which he or she is charged under section 21(3) of the Government Proceedings Act. A mandamus order would properly issue in such circumstances.
13. Accordingly, I allow the applicant’s application to the extent that the order of mandamus is hereby granted compelling the 1st respondent’s accounting officer in charge of finance, to pay the applicant in terms of the certificate of order against the government given on 5 June 2024. The applicant will also have costs of the application. It is so ordered.