[1] Upon being granted leave on 20th June 2024, the applicant filed the substantive Judicial Review application dated 5th July 2024 seeking orders that:
[a] the Court be pleased to issue an Order of Mandamus to compel the respondents to pay the applicant the decretal amount in the sum of Kshs. 32,197,106 together with interest thereon at court rates until payment in full, being sums awarded in Mombasa High Court Civil Case No. 75 of 2018: Peterson Mitau T/A Mombasa Fresh Water Supply Co. v Kenya Ports Authority.
[b] Costs of the application be provided for.
[c] Such further or other reliefs as the Court may deem just and expedient.
[2] The application was premised on the grounds set out in the Statutory Statement filed with the initial application for leave as well as the Verifying Affidavit sworn by Peterson Mitau on behalf of the applicant. He deposed that he filed Mombasa High Court Civil Case No. 75 of 2018: Peterson Mitau T/A Mombasa Fresh Water Supply Company v Kenya Ports Authority. The applicant further averred that the case was heard and judgment delivered in his favour in the sum of Kshs. 28,833,230 together with interest at court rates from the date of judgement; which was on 30th May 2023.
[3] The applicant also deposed that thereafter, he obtained a Decree which was duly served on the respondents; but that the respondents had failed, neglected or refused to pay the decretal sum. He further stated that instead, the respondents filed an application for stay pending appeal dated 7th July 2023 which the Court allowed on condition that payment of the Decree or any order that would be binding on the respondents on appeal be secured by a Bank Guarantee within 30 days from the date of the ruling.
[4] It was the contention of the applicant that the respondents failed to comply with the orders of the Court and consequently did not furnish the requisite Bank Guarantee within the stipulated time. He accordingly averred that, in the circumstances he is at liberty to proceed enforcement of the Decree; and that the only way of compelling payment is by way of an order of Mandamus. He further stated that under Section 21 of the Government Proceedings Act, it is the duty of the 1st respondent to settle the Decree by causing the sums due to be included in its annual budgets. The applicant therefore averred that, unless the Court intervenes by issuing an order of Mandamus, the respondents will continue to neglect the subject Decree. He annexed copies of the Judgment, Decree and Guarantee, among other pertinent documents, as exhibits in support of his averments.
[5] The respondents opposed the application. They relied on the Replying Affidavit sworn by its Senor Legal Officer, Michael Sangoro, the respondent’s Manager, Litigation & Disputes. He confirmed that this suit arises from the claim by the applicant in Mombasa HCCC No. 75 of 2018 in which the applicant was awarded a sum of Kshs. 28,833,230/=. He also confirmed that, subsequently, the Court issued an order of stay of execution of the said judgment on condition that a Bank Guarantee be furnished by the 1st respondent in the sum of Kshs. 28,000,000/= within 30 days from the date of the order.
[6] It was further the assertion of the respondents that the Bank Guarantee was duly furnished by the 1st respondent and therefore the order of stay was to be in place pending the hearing and determination of the appeal. In the respondents’ view, no prejudice had been caused to the applicant and therefore the instant application is simply intended to steal a march on them.
[7] At paragraph 7 of the respondents’ Replying Affidavit, they deposed that:
[a] Immediately after the ruling, their Advocates wrote to the applicant’s Advocate who responded on 20th November 2023 and on 15th December 2023 the respondents’ Advocates forwarded to the applicant’s Advocates the Advance Note from Citibank N.A. confirming issuance of a Bank Guarantee which was thereafter forwarded to the applicant on 20th December 2023.
[b] The short delay in furnishing the Guarantee was not inordinate or inexcusable, especially so that the wording of the Guarantee was only agreed by the applicant and notified to the respondent on 21st November 2023. The respondents added that, if the five days are excluded, the 30-day period would have been complied with in any event.
[c] The 16th December 2023 fell on a Saturday and under the provisions of Order 50 Rule 3 of the Civil Procedure Rules, the 30-day period for the provision of the Guarantee would run out on the 18th December 2023, one day prior to the issuance and availing of the Guarantee to the applicant.
[8] The respondents further averred that, despite several attempts to have a mutually agreed position on the matter, the applicant was averse to a mutual extension of time and proceeded to file these proceedings. They added that it would be highly prejudicial if these enforcement proceedings proceeded when in fact there is a Guarantee that has been issued in the matter for the due performance of the Decree as directed by the Court. They further pointed out that there was an application pending before the Court in the civil matter, in which the 1st respondent had applied for reinstatement of the stay order pending an appeal to the Court of Appeal.
[9] In the circumstances, the respondents deposed that it would only be reasonable that they be given an opportunity to pursue the appeal whilst these enforcement proceedings are put in abeyance; and that no prejudice will be caused to the ex parte applicant if this applicant is disallowed as the interests of justice would best be served if the pending appeal is heard and determined first. They accordingly prayed for the dismissal of the application dated 5th July 2024. The respondents also relied on several documents exhibited as annexures to their Replying Affidavit. Those documents include copies of the filed Memorandum of Appeal and Record of Appeal as well as documents related to the application filed in the civil suit.
[10] The respondents filed a Further Affidavit sworn by their counsel, Mr. Sanjeev Khagram on 14th December 2024. Counsel averred that ruling in respect of the respondent’s application for extension of time, filed in Mombasa HCCC No. 75 of 2018 was delivered on 5th December 2024. He annexed a copy thereof as well as a copy of the Order issued by the Court as Annexure “SK-1”. He pointed out that the application was allowed and extension of time granted by 7 days from 16th November 2023, such that the Bank Guarantee issued by Citibank N.A. in favour of the plaintiff on 20th December 2023 is deemed as having been given within the conditional timeline granted for the stay of execution.
[11] The application was canvassed by way of written submissions pursuant to the directions given herein on 18th July 2024. The applicant proposed two issues for determination in his written submissions:
[a] Whether the order of Mandamus sought by the applicant should be granted;
[b] Who bears the costs of the application?
[12] The applicant urged the Court to consider the scope and efficacy of the order of Mandamus as discussed in Halsbury’s Laws of England, 4th Edition Vol 1 at page 111 and Kenya National Examination Council v Republic, Ex Parte Geoffrey Gathenji Njoroge & 9 others. In particular, the applicant submitted that the purpose of Mandamus is to remedy the defects of justice. He accordingly urged the Court to grant his prayers to enable him enjoy the fruits of his judgment.
[13] The applicant further submitted that the Guarantee was required within a specified timeframe; and therefore the document furnished by the 1st respondent is improperly before the Court. He relied on Juja Coffee Exporters Ltd v National Bank of Kenya Ltd [2021] eKLR and urged the Court to hold that the stay order had lapsed. The applicant posited that the only option available to the respondents was to apply for extension of time; and that as matters stood there was no adequate security provided by the respondents.
[14] On costs, the submission of the applicant was that it was in the discretion of the Court. He made reference to Section 27 of the Civil Procedure Act in this regard. Accordingly, the applicant prayed that his application be allowed and orders granted as sought therein.
[15] On their part, the respondents relied on their written submissions dated 10th December 2024. They reiterated the factual basis of their case and proposed and single issue for determination, namely, whether the Order of Mandamus should be granted. The respondent urged the Court to find that the Bank Guarantee was indeed provided and is valid for all practical purposes. They also urged the Court to take into account that the Court has granted them extension of time vide a ruling dated 5th December 2024; and therefore the application has been rendered otiose.
[16] The respondents relied on Republic v Principal Secretary Ministry of Internal Security & another, Ex Parte Schon Noorani & another [2018] eKLR in which it was held that:
“Mandamus is a discretionary remedy, which a court may refuse to grant even when the requisite grounds for it exist. The Court has to weigh one thing against another to see whether or not the remedy is the most efficacious in the circumstances obtaining. The discretion of the Court being a judicial one must be exercised on the basis of evidence and sound legal principles.”
[17] Having carefully considered the application, the grounds set out in the affidavits filed herein by the parties as well as their written submissions, it is manifest that a plausible justification has been given for the delay on the part of the 1st respondent in availing the Bank Guarantee. In the circumstances, the delay was not inordinate, taking into account the provisions of Order 50 Rule 3 of the Civil Procedure Rules.
[18] More importantly, the respondents demonstrated that they applied for extension of time, which was granted by the Court in HCCC No. 75 of 2018. A copy thereof was annexed to their Further Affidavit. Indeed, in his written submissions, the applicant conceded that the only option available to the respondents was to apply for extension of time; which has since been granted.
[19] In the premises, it is my considered view that the instant application is premature. At any rate there was no proof of willful refusal to pay. Accordingly, the application dated 5th July is hereby struck out with no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF MARCH 2025