1. The application before this Court is the Notice of Motion dated 13th May, 2024 wherein the Applicant seeks the following orders:
1) An Order of mandamus be and is hereby issued to compel the 1st and 2nd Respondents to pay the Exparte Applicant Kshs 4,071,535.00 under the Certificate of Taxation dated 17th April, 2024.
2) The costs of this application be borne by the 1st and 2nd Respondents.
2. It is the Applicants case that they filed a bill of costs which was taxed on 23rd April, 2024 at Kshs 4,071,535.00.A Certificate of Costs was thereafter issued on 17th April, 2024.
3. The Applicant thereafter requested for the payment of the taxed costs made from the 1st and 2nd Respondents on 23rd April, 2024 which has not been acted upon or responded to.
4. The 2nd Respondent opposes the Application through Grounds of Opposition dated 10th June, 2024 wherein they contended that:
1) The Application is misconceived, incompetent and is only anchored at vexing the 2nd Respondent.
2) The Applicant has not demonstrated any efforts made by it in demanding payment of its taxed costs sought from the 2nd Respondent prior to filing the instant Application.
3) The Applicant has also not demonstrated the refusal by the 2nd Respondent in settling the its taxed costs of Kshs. 4,071,535/- taking note the Certificate of costs dated 17th April 2024 was served upon the 2nd Respondent's Advocates on 23rd May 2024, barely two weeks before filing the instant Application.
4) This is mischief on the part of the Applicant to allege that the to the 2nd Respondent has refused to settle the taxed costs whereas it has not exhausted all the payment mechanisms noting that the payment of its taxed costs is still being processed by the 2nd Respondent, who received the Certificate of costs barely two weeks before the instant Application was filed.
5) The Application is therefore an abuse of the court process, offending the doctrine of exhaustion and yearning for dismissal since the same has been brought prematurely noting that the taxed costs sought by the Applicant is still being processed by the 2nd Respondent considering that the same is indeed a substantial amount.
6) The Applicant has not satisfied the requisite conditions to warrant the granting of an Order of Mandamus.
7) The Application as filed and prayers sought therein are unmeritorious, an abuse of the Court process and should be dismissed with costs to the 2nd Respondent
5. The applicant prays that the Respondent’s ground of opposition be struck out with costs and that it’s Notice of Motion dated 1st July, 2024 be allowed as prayed.
Analysis and Determination;
6. The issue for determination is whether or not the Applicant has made out a case for the grant of the orders sought.
7. The Respondent’s argument that The Applicant has not demonstrated any efforts made by it in demanding payment of its taxed costs as sought from the 2nd Respondent prior to filing the instant Application cannot form the basis to deny the Applicant its entitlement under the certificate of costs.
8. Further the 2nd Respondents argument that The Applicant served upon it’s Advocates on 23rd May 2024, barely two weeks before filing the instant Application is neither here nor there.
9. The 2nd Respondent has admitted that it is aware of the claim and that it is aware that it is under a duty to pay. It does not matter whether they were notified two weeks before the filing of the claim .All that matters is that the Applicant has a legitimate expectation claim that must be settled which the Respondents and the duty bearers have failed to do.
10. The argument by the 2nd Respondent that the Applicant has not exhausted all the payment mechanisms is self-defeatist and mischievous if that argument is read alongside argument that the payment of its taxed costs is still being processed by the 2nd Respondent, who admitted that it received the Certificate of costs barely two weeks before the instant Application was filed.
11. Halsbury’s Law of England, 4th Edn. Vol. 7 p. 111 para 89 provides thus:
"The order of mandamus is of 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."
12. The Respondent has not demonstrated why it has not settled nor made a proposal on how it intends to settle the claim. This court is at this point persuaded that an order of Mandamus should be granted as prayed.
13. The Applicant is simply pursuing its rights through the available legal mechanisms and it cannot be faulted.
14. It does not matter whether the claim is that of a substantial amount or not. The Respondent is at all times under a duty to act promptly and efficiently, without unnecessary delay when it comes to settling legitimate claims. The Respondents have failed to act within the fair administrative action threshold in delaying to settle the claim and I so hold.
Order:
1) The foregoing the order that commends itself is that an Order of mandamus be and is hereby issued to compel the 1st and 2nd Respondents to pay the Exparte Applicant Kshs 4,071,535.00 under the Certificate of Taxation dated 17th April, 2024.
2) The costs of this application be borne by the 1st and 2nd Respondents.