Monicah Wamuhu Macharia has come to this court against the Managing Director Kenya Railways Corporation seeking orders that in the first instance, the applicant be granted leave to commence a motion of judicial review for orders of mandamus to compel the managing director of the 2nd respondent, Mr Philip J. Mainga and/or his successor in title to perform his statutory duty and settle the decretal sum on Nakuru ELC E026 of 2020. Costs of this application to abide the outcome of the substantive motion.
The application is based on facts that the court in Nakuru ELC E026 of 2020 ordered the 2nd respondent to pay to the applicant a sum of Kshs.45,000,000/= being damages for illegal demolition of the applicant's property. The applicant lodged an appeal against that decision and an application for stay of execution. The application for stay of execution was considered and the 2nd respondent was ordered to deposit the decretal sum in an interest earning account within (90) days.
The period of 90 days lapsed on 29th February 2024 but the 2nd respondent had not complied with the conditions for stay of execution. Therefore, the order of stay of execution has since lapsed. The 1st respondent has a statutory obligation under section 88 of the Kenya Railways Act to settle the decretal sum without delay. The 1st respondent has failed/refused to perform his statutory duty and it is only fair that this court issues an order of mandamus to compel him to perform his statutory duties.
In the replying affidavit the applicant states that her advocate has issued a notice to the managing director of the 2nd respondent but has failed to act. The respondents have not declined or neglected to pay the decretal sum as alleged by the applicant. The 2nd respondent being a statutory corporation receives its funding to operate from the government. These funds are only available to it upon the same budgeted for and the same being allocated to it in accordance with the financial year budget with the approval of the Cabinet Secretary for as stipulated in Part V of the Kenya Railways Corporation Act.
At the time the ruling was delivered requiring the 2nd respondent to deposit decretal sum together with the taxed costs totaling to almost Kshs45, 500,000 the 2nd respondent had already commenced a new financial year.
The 2nd respondent had presented the said claim to the Cabinet Secretary of Finance for inclusion in new financial year and is still waiting for a response on the same. The delay by the Corporation in complying with the court orders is occasioned by circumstances that are beyond its control.
It is not true that the 2nd respondent has refused to perform and comply with decree of this court in Nakuru ELC No E026 of 2020 as the 2nd respondent is still for communication on the request for approval and funding from the government,
I have considered the application and the reply and do find that this court has delivered a judgment in this matter that the respondent pays the applicant Kshs45,000,000. Pursuant to the judgment a decree was issued by the Deputy Registrar. The court granted an order of stay of execution for 90 days which has lapsed. The applicant has demanded payment but the same is not forthcoming. This court finds that the applicant has satisfied the conditions for grant of leave to commence Judicial Review proceedings as the respondent has a duty to pay all sums ordered by the court but has failed to do so. I do grant leave to commence a motion of judicial review for orders of mandamus to compel the managing director of the 2nd respondent, Mr Philip J. Mainga and/or his successor in title to perform his statutory duty and settle the decretal sum on Nakuru ELC E026 of 2020. The Notice of Motion to be filed within 21 days.
The application is based on facts that the court in Nakuru ELC E026 of 2020 ordered the 2nd respondent to pay to the applicant a sum of Kshs.45,000,000/= being damages for illegal demolition of the applicant's property. The applicant lodged an appeal against that decision and an application for stay of execution. The application for stay of execution was considered and the 2nd respondent was ordered to deposit the decretal sum in an interest earning account within (90) days.
The period of 90 days lapsed on 29th February 2024 but the 2nd respondent had not complied with the conditions for stay of execution. Therefore, the order of stay of execution has since lapsed. The 1st respondent has a statutory obligation under section 88 of the Kenya Railways Act to settle the decretal sum without delay. The 1st respondent has failed/refused to perform his statutory duty and it is only fair that this court issues an order of mandamus to compel him to perform his statutory duties.
In the replying affidavit the applicant states that her advocate has issued a notice to the managing director of the 2nd respondent but has failed to act. The respondents have not declined or neglected to pay the decretal sum as alleged by the applicant. The 2nd respondent being a statutory corporation receives its funding to operate from the government. These funds are only available to it upon the same budgeted for and the same being allocated to it in accordance with the financial year budget with the approval of the Cabinet Secretary for as stipulated in Part V of the Kenya Railways Corporation Act.
At the time the ruling was delivered requiring the 2nd respondent to deposit decretal sum together with the taxed costs totaling to almost Kshs45, 500,000 the 2nd respondent had already commenced a new financial year.
The 2nd respondent had presented the said claim to the Cabinet Secretary of Finance for inclusion in new financial year and is still waiting for a response on the same. The delay by the Corporation in complying with the court orders is occasioned by circumstances that are beyond its control.
It is not true that the 2nd respondent has refused to perform and comply with decree of this court in Nakuru ELC No E026 of 2020 as the 2nd respondent is still for communication on the request for approval and funding from the government,
I have considered the application and the reply and do find that this court has delivered a judgment in this matter that the respondent pays the applicant Kshs45,000,000. Pursuant to the judgment a decree was issued by the Deputy Registrar. The court granted an order of stay of execution for 90 days which has lapsed. The applicant has demanded payment but the same is not forthcoming. This court finds that the applicant has satisfied the conditions for grant of leave to commence Judicial Review proceedings as the respondent has a duty to pay all sums ordered by the court but has failed to do so. I do grant leave to commence a motion of judicial review for orders of mandamus to compel the managing director of the 2nd respondent, Mr Philip J. Mainga and/or his successor in title to perform his statutory duty and settle the decretal sum on Nakuru ELC E026 of 2020. The Notice of Motion to be filed within 21 days.