Monicah Wamuhu Macharia (hereinafter referred to as the exparte applicant) has come to this court seeking an order of Mandamus to compel the Managing Director of the Kenya Railways Co-operation (the respondent), currently Mr Philip J. Mainga or his successor in title to perform his statutory duty and settle the decretal sum of costs and interest ordered by the court in Nakuru ELC E020 of 2020. She prays for costs of the application. The application is based on grounds that the 2nd respondent demolished a storied building owned by the ex parte applicant erected on the parcel of land known as Nakuru Municipality Block 6/141. The demolition was based on unfounded allegations that the parcel of land was erected on a parcel of land owned by the 2nd respondent.
The ex parte applicant lodged a suit which was serialized as Nakuru ELC E026 of 2020 and upon hearing, the court ordered the 2nd respondent to pay to the ex parte applicant a sum of Kshs.45,500,000/= being damages for illegal demolition of the applicant's property.
The exparte applicant lodged an appeal against that decision and an application for stay of execution wherein 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 respondent had not complied with the conditions for stay of execution and 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 compelling him to perform his statutory duties. The ex parte applicant is an elderly widow and the property which was demolished by the respondents was her sole source of income which was left to her by her late husband. Under article 57 of the Constitution, the state and state agencies such as respondent have the constitutional obligation to ensure the rights of older persons are protected. Those rights include the right to live in dignity and respect and there cannot be a right to live in dignity when the conduct of the respondent has made the ex parte applicant unable to provide for herself and they have declined to settle the damages ordered by the Court.
The respondent on his part states that the applicant lacks standing to commence these proceedings in her personal capacity as the judgment was made in her capacity as person representative to the estate of the late Peter Macharia.
The respondent states that leave of the court was required to commence the execution because taxation need to be undertaken and therefore the application is premature. The respondents states that they have appealed to the Court of Appeal.
The respondent obtained stay of execution on condition that she deposits the decretal sum in the joint account to be opened by the parties. The respondent was unable to do so due to the fact that the funds were not allocated by the Government in the financial year. The delay in making the funds available was due to circumstances beyond their control.
In the supplementary affidavit the exparte applicant states that the question of legal capacity was resolved in the main suit. Moreover, the applicant states that a decree can be executed before taxation.
I have considered the application and do find that it is a fact that judgment was made by this court for the respondent to pay the exparte applicant 45,500,000 for destruction of property. Thereafter a decree was issued and the respondent was requested to settle the decree but has failed to do so. The applicant now seeks and order of mandamus to compel the respondent settle the decree.
In the case of Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR it was held by the highest court at that time that:-
“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.”
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, amandamus 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.”
In the case of Republic v Inspector General - The National Police Service & Attorney General [2019] KEHC 11914 (KLR), Justice Mativo relied on the Canadian case of Apotex Inc. vs. Canada (Attorney General),C.A1993 CanLII3004(FCA),1994FC742 that , was discussed in Dragan vs. Canada (Minister of Citizenship and Immigration) to list the eight factors laid down in the above two cases that must be present for the writ to issue and proceed to apply them to facts and circumstances of this case. The tests are:-
i. There must be a public legal duty to act;
ii. The duty must be owed to the Applicants;
iii. There must be a clear right to the performance of that duty, meaning that:-
a. The Applicants have satisfied all conditions precedent; and
b. There must have been:-
i. A prior demand for performance;
ii. A reasonable time to comply with the demand, unless there was outright refusal; and
iii. An express refusal, or an implied refusal through unreasonable delay;
iv. No other adequate remedy is available to the Applicants;
v. The Order sought must be of some practical value or effect;
vi. There is no equitable bar to the relief sought;
vii. On a balance of convenience, mandamus should lie.
The Canadian court of Appeal held as follows:-
“Several principal requirements must be satisfied before mandamus will issue. First, there must be a public legal duty to act owed to the applicant. Generally, mandamus cannot issue with respect to a duty owed to the Crown. The Minister had a duty to act which was owed to Apotex. Merck’s submission, that the Minister owed no duty to Apotex at the time it commenced its judicial review application on December 22, 1992 or on the hearing date, was partly correct. An order of mandamus will not lie to compel an officer to act in a specified manner if he is under no obligation to act as of the hearing date, but that rule was not valid if applied as of the date that the application for mandamus was filed. While it is open to a respondent to pursue dismissal of an application where the duty to perform has yet to arise, in the absence of compelling reasons, an application for mandamus should not be defeated on the ground that it was initiated prematurely. Provided that the conditions precedent to the exercise of the duty have been satisfied at the time of the hearing, the application should be assessed on its merits.”
Section 88 of the Kenya Railways Corporation Act Cap 397 Laws of Kenya provides for the restriction on execution against property of Corporation but the Managing director has the duty to settle the decree. The section provides as follows:-
“88. RESTRICTION ON EXECUTION AGAINST PROPERTY OF CORPORATION
Notwithstanding anything to the contrary in any law—(a)where any judgment or order has been obtained against the Corporation, no execution or attachment, or process in the nature thereof, shall be issued against the Corporation or against any immovable property of the Corporation or any of its trains, vehicles, vessels or its other operating equipment, machinery, fixtures or fittings; but the Managing Director shall, without delay, cause to be paid out of the revenue of the Corporation such amounts as may, by the judgment or order, be awarded against the Corporation to the person entitled thereto;
Notwithstanding anything to the contrary in any law—(a)where any judgment or order has been obtained against the Corporation, no execution or attachment, or process in the nature thereof, shall be issued against the Corporation or against any immovable property of the Corporation or any of its trains, vehicles, vessels or its other operating equipment, machinery, fixtures or fittings; but the Managing Director shall, without delay, cause to be paid out of the revenue of the Corporation such amounts as may, by the judgment or order, be awarded against the Corporation to the person entitled thereto;”
I have considered the rival submissions and do find that the exparte applicant satisfies the conditions for grant of the order sought. Therefore I do grant an order of mandamus to compel the Managing Director of the Kenya Railways Corporation (the respondent), currently Mr Philip J. Mainga or his successor in title to perform his statutory duty and settle the decretal sum of Ksh 45,500,000 and certified costs and interest as ordered by the court in Nakuru ELC E020 of 2020. The respondents shall bear costs of the application. Orders accordingly.
The ex parte applicant lodged a suit which was serialized as Nakuru ELC E026 of 2020 and upon hearing, the court ordered the 2nd respondent to pay to the ex parte applicant a sum of Kshs.45,500,000/= being damages for illegal demolition of the applicant's property.
The exparte applicant lodged an appeal against that decision and an application for stay of execution wherein 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 respondent had not complied with the conditions for stay of execution and 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 compelling him to perform his statutory duties. The ex parte applicant is an elderly widow and the property which was demolished by the respondents was her sole source of income which was left to her by her late husband. Under article 57 of the Constitution, the state and state agencies such as respondent have the constitutional obligation to ensure the rights of older persons are protected. Those rights include the right to live in dignity and respect and there cannot be a right to live in dignity when the conduct of the respondent has made the ex parte applicant unable to provide for herself and they have declined to settle the damages ordered by the Court.
The respondent on his part states that the applicant lacks standing to commence these proceedings in her personal capacity as the judgment was made in her capacity as person representative to the estate of the late Peter Macharia.
The respondent states that leave of the court was required to commence the execution because taxation need to be undertaken and therefore the application is premature. The respondents states that they have appealed to the Court of Appeal.
The respondent obtained stay of execution on condition that she deposits the decretal sum in the joint account to be opened by the parties. The respondent was unable to do so due to the fact that the funds were not allocated by the Government in the financial year. The delay in making the funds available was due to circumstances beyond their control.
In the supplementary affidavit the exparte applicant states that the question of legal capacity was resolved in the main suit. Moreover, the applicant states that a decree can be executed before taxation.
I have considered the application and do find that it is a fact that judgment was made by this court for the respondent to pay the exparte applicant 45,500,000 for destruction of property. Thereafter a decree was issued and the respondent was requested to settle the decree but has failed to do so. The applicant now seeks and order of mandamus to compel the respondent settle the decree.
In the case of Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR it was held by the highest court at that time that:-
“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.”
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, amandamus 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.”
In the case of Republic v Inspector General - The National Police Service & Attorney General [2019] KEHC 11914 (KLR), Justice Mativo relied on the Canadian case of Apotex Inc. vs. Canada (Attorney General),C.A1993 CanLII3004(FCA),1994FC742 that , was discussed in Dragan vs. Canada (Minister of Citizenship and Immigration) to list the eight factors laid down in the above two cases that must be present for the writ to issue and proceed to apply them to facts and circumstances of this case. The tests are:-
i. There must be a public legal duty to act;
ii. The duty must be owed to the Applicants;
iii. There must be a clear right to the performance of that duty, meaning that:-
a. The Applicants have satisfied all conditions precedent; and
b. There must have been:-
i. A prior demand for performance;
ii. A reasonable time to comply with the demand, unless there was outright refusal; and
iii. An express refusal, or an implied refusal through unreasonable delay;
iv. No other adequate remedy is available to the Applicants;
v. The Order sought must be of some practical value or effect;
vi. There is no equitable bar to the relief sought;
vii. On a balance of convenience, mandamus should lie.
The Canadian court of Appeal held as follows:-
“Several principal requirements must be satisfied before mandamus will issue. First, there must be a public legal duty to act owed to the applicant. Generally, mandamus cannot issue with respect to a duty owed to the Crown. The Minister had a duty to act which was owed to Apotex. Merck’s submission, that the Minister owed no duty to Apotex at the time it commenced its judicial review application on December 22, 1992 or on the hearing date, was partly correct. An order of mandamus will not lie to compel an officer to act in a specified manner if he is under no obligation to act as of the hearing date, but that rule was not valid if applied as of the date that the application for mandamus was filed. While it is open to a respondent to pursue dismissal of an application where the duty to perform has yet to arise, in the absence of compelling reasons, an application for mandamus should not be defeated on the ground that it was initiated prematurely. Provided that the conditions precedent to the exercise of the duty have been satisfied at the time of the hearing, the application should be assessed on its merits.”
Section 88 of the Kenya Railways Corporation Act Cap 397 Laws of Kenya provides for the restriction on execution against property of Corporation but the Managing director has the duty to settle the decree. The section provides as follows:-
“88. RESTRICTION ON EXECUTION AGAINST PROPERTY OF CORPORATION
Notwithstanding anything to the contrary in any law—(a)where any judgment or order has been obtained against the Corporation, no execution or attachment, or process in the nature thereof, shall be issued against the Corporation or against any immovable property of the Corporation or any of its trains, vehicles, vessels or its other operating equipment, machinery, fixtures or fittings; but the Managing Director shall, without delay, cause to be paid out of the revenue of the Corporation such amounts as may, by the judgment or order, be awarded against the Corporation to the person entitled thereto;
Notwithstanding anything to the contrary in any law—(a)where any judgment or order has been obtained against the Corporation, no execution or attachment, or process in the nature thereof, shall be issued against the Corporation or against any immovable property of the Corporation or any of its trains, vehicles, vessels or its other operating equipment, machinery, fixtures or fittings; but the Managing Director shall, without delay, cause to be paid out of the revenue of the Corporation such amounts as may, by the judgment or order, be awarded against the Corporation to the person entitled thereto;”
I have considered the rival submissions and do find that the exparte applicant satisfies the conditions for grant of the order sought. Therefore I do grant an order of mandamus to compel the Managing Director of the Kenya Railways Corporation (the respondent), currently Mr Philip J. Mainga or his successor in title to perform his statutory duty and settle the decretal sum of Ksh 45,500,000 and certified costs and interest as ordered by the court in Nakuru ELC E020 of 2020. The respondents shall bear costs of the application. Orders accordingly.