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JudgmentNYASWI GETEMANI VS State Law9 min read

NYASWI GETEMANI VS State Law

High Court at Migori High Court · · Anne Ong'injo


Introduction

  1. Before this court for determination is the Ex-Parte Applicant’s Notice of Motion dated 30th July 2024 premised on the provisions of Order 53 rule 1(1), (2) and (4) of the Civil Procedure Rules, 2010 and Section 8 and 9 of the Laws Reform Act and Section 11(1) (f) of the Fair Administrative Action Act. The Ex-Parte Applicant seeks the following orders:
  2. The Honourable Court be pleased to grant an Order of Judicial Review in the nature of mandamus to issue against the Respondent herein, to compel them to proceed and pay out the Decretal sum of Kshs. 216, 715.00 being the General Damages, Costs and Interest as per Decree in Migori CMCC No 22 of 2014, Nyanswi Getemani versus Ibrahim Bashir, Joseph Ongoro, Daniel Morongo and Hon. Attorney General, which Judgment was delivered on 14th December 2016 and continues to attract interest at Court rates.
  3. The Honourable Court be pleased to set a timeline and/or duration within which the Respondent herein do settle the Decretal sum with interest accruing until the date of payment.
  4. The Applicant be at liberty to apply to this Court for all necessary and/or consequently orders that this Honourable Court may deem fit and just to grant in the circumstances.
  5. Costs of this application to be provided for.
  6. The application is premised on the grounds on its face, the statutory statement dated 18th October 2023 and the affidavit verifying the facts sworn by the Applicant on even date.
  7. According to the Statutory Statement and the verifying affidavit, the Ex-parte Applicant is the decree holder in Migori CMCC No. 22 of 2014-Nyanswi Getemani vs Ibrahim Bashir, Joseph Ongoro, Daniel Morongo and Hon. Attorney General in which a judgement was delivered in favour of the applicant in the sum of Kshs. 125,000/= with costs and interest on the principal amount at the rate of 8% per annum.
  8. The Applicant stated that at the time of filing this application the decretal amount stood at Kshs. 216,715.00/= being the award, costs and interest and continues to accrue interests.
  9. The Applicant obtained the decree, certificate of order against the Government and Certificate of order for costs against the Government prior to filing the present application. The Respondent has not only refused to settle the decretal sum and costs but also not responded to the present application.
  10. The Applicant states that the Respondent ought to be compelled to settle the decree by way of mandamus as it has not shown any willingness to settle the decretal sum. 
  11. There is no response on record on behalf of the Respondent.
  12. On 16th October 2024, this court issued directions that the substantive motion be canvassed by way of written submissions. The Respondent was also granted leave to file and serve their responses and submissions within 21 days but failed to do so. The Applicant complied and filed his submissions in support of his application.
  1. The Applicant raised several issues in his submissions. On whether the decree and certificate of order was duly served upon the Respondent, he submitted that the record shows that the applicant has all along served the Respondent with court processes. The Respondent participated in the trial court proceedings vide a memorandum of appearance dated 22nd March 2016 and thus the Respondent was aware of the judgment and decree at the conclusion of the trial. He submitted that service of pleadings was also done through the same office and returns of service filed.
  2. On the second issue, whether the Respondent has a public duty to satisfy the claim, the Applicant cited Article 156 (4) of the Constitution which states that the Attorney General is the Principal Legal Adviser to the Government and represent the national government in court in legal proceedings other than criminal proceedings. The Ex-Parte Applicant relied on the decision of Republic vs Permanent Secretary Ministry of state for Provincial administration and internal Security (2012) where the court observed that unlike in other civil proceedings, where decrees for 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.
  3. The Applicant argues that when the Attorney general is sued on behalf of the government he is obliged to advise his client to pay any costs and liabilities that arise out of his representation failure to which the duty shall rest on him. He cited the decision in Peter Anyang’ Nyongo & 10 others vs Solicitor General (2011) eKLR.
  4. On the last issue whether the application is merited, the Applicant submitted that the applicable law on execution proceedings against the national government is Section 21 of the Government Proceedings Act. He further argued that the law bars execution against proceedings thus the only remedy available is an order of mandamus as elaborated in Republic vs Kenya National Examinations Council-Exparte Gathenji and Others (1997) eKLR and High Court Misc. Application No. 44 of 2012-Repblic vs The Attorney General & another ex parte James Alfred Koroso (2013) eKLR. 
  5. The Applicant submitted that the application is merited and should be allowed as prayed.

Analysis and determination

  1. I have considered the motion, the submissions in support and the cited authorities. The motion is unopposed and Section 21 (1), (2), (3) (4) and (5) of the Government Proceedings Act provides the manner and procedure of enforcement of orders and decrees issued against the Government. The said Section provides as follows; 
  2. 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.

  1. 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.
  2. 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.

  1. 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.
  2. 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.
  3. Under Section 21 of the Act (1) in any civil proceedings by or against the Government, any order 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 at any time after the expiration of twenty-one days from the date of the order whichever is the later, issue to that person a certificate containing particulars of the order (2) a copy of the certificate may be served upon the Attorney General, (3) the certificate shall state the amount payable and the Accounting Officer 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 (4) no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government 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.
  4. In Kenya National Examination Council vs Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR the Court of Appeal observed thus;

“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.”

  1. Under Paragraph 124 of HALSBURY’S LAWS OF ENGLAND-Judicial Review (Volume 61 A (2023) Nature of the Mandatory Order, it states that public officers may be compelled to perform their public duties by a mandatory order (mandamus) if they fail to do so.  The said reads as follows;

“If public officials or public bodies fail to perform any public duty with which they have been charged, a mandatory order may be made to compel them to carry out the duty”

  1. In my view of the above provision the Applicant complied with the provisions of Section 21 (2) and (3) of the Government Proceedings Act which requires the Applicant to obtain and serve the certificate of order against the Government. And the Respondent has failed to pay despite being served with the certificate of order against the government.
  2. The Respondent having failed to file a response and also failed to pay the decretal amount, the option available for the Applicant is to have the Respondent compelled by way of mandamus to pay the decretal amount as per the certificate of Order against the Government dated 10th February 2020.
  3. In the instant application, there is evidence that the applicant extracted the Certificate of order against the Government dated 10th February 2020 and the decree dated 14th December 2016. There is also evidence that the same were served upon the Respondent and no response was filed.
  4. In my considered view, the Applicant has satisfied the court that he served certificate of order against the Government and the Respondent having failed to pay, this court hereby issues order of Judicial Review in the nature of mandamus  against the Respondent to compel him to satisfy the decree in Migori CMCCC No. 22 of 2022 in the sum of Kshs. 216,715/= together with costs herein within 90 days.
  5. The costs of the application to the Applicant.

Orders accordingly.

Signed dated and delivered at Migori this 8th day of May, 2025.

    NYASWI GETEMANI VS State Law NYASWI GETEMANI VS State Law