1.The ex parte applicant moved the court by way of the Notice of Motion dated 26th December 2023 seeking the following orders;
1.THAT an order for mandamus do issue to the Secretary, National Land Commission being the Accounting Officer compelling him to pay the Applicant the sum of Kshs. 10,263,750/- (having complied with all statutory proceedings laid out under Section 21 of the Government Proceedings Act) being the amount in Kitui together with Kshs. 328,440/- being the certified costs thereon together with interests theron at 14% per annum from 30th October 2023 until payment in full.
2.THAT the court be at liberty to make such further and other orders that it deems fit to meet the ends of justice.
3.THAT costs of and incidental to this suit be in favour of the Applicant
4.THAT an order of mandamus do issue to the Respondent to pay for the costs of this application.
2.The grounds in support of the application are set out on the face of the application, the supporting affidavit and the Statement of Facts.
3.The Applicant states that she obtained judgment against the Respondent herein in Kitui Chief Magistrate’s Court Environment and Land case number E33 of 2023 for recovery of the sum of Kshs 10,263,750/- together with costs and interest.
4.Judgement was entered in favour of the Applicant and a decree was issued on 30th October 2023. A certificate of stated costs was issued on the same date for Kshs 328,440/-. The Applicant also obtained a Certificate of Order Against Government dated 30th October 2023.
5.The Applicant averred that since the date of judgment and despite demand and reminder to pay through the letter dated 1st November 2023 addressed to the Respondent, the Respondent has failed and/or refused to make good payment of the decretal sum thus necessitating the present suit for recovery of the decretal sum.
6.The Respondent was served with the Notice of Motion herein and a Mention Notice dated 27th December 2023 as confirmed by the affidavit of service of Peter Onyango Odhiambo an authorized court process server sworn on 10th January 2024. Various other affidavits of service filed show that the Respondent has all along been aware of the existence of this suit. They did not enter an appearance or file any documents in reply to the application herein.
7. On 23rd May 2024 the the court directed the Applicant to file written submissions.
The Applicant’s Written Submissions
8. Counsel for the Applicant set out, in summary, from the facts as set out above and submitted that two issues arise for the determination of whether all conditions under Section 21 of the Government Proceedings Act have been complied with for issuance of an order of mandamus and whether the Respondent is entitled to pay costs of the suit and the application herein.
9.Counsel submitted that the Applicant had complied with the provisions of Section 21 of the Government Proceedings Act and was entitled to the orders sought. He relied on the case of Republic v. Public Service Commission & 2 Others; Ibrahim (Ex parte ) Judicial Review Misc Application E037 of 2021 (2023) KEH 3700 (KLR) confirming that where judgement has been entered against the Government the only way to execute the decree is by way of a Judicial Review order of mandamus upon compliance with Section 21 Government Proceedings Act.
10.Counsel further relied on the case of Republic v County Government of Kiambu Ex Parte Laban J Macharia Muiruri [2021] eKLR where the court set out the scope of an order of mandamus and R. v County Government of Kiambu JR. Misc App. No. 14 of 2020 where the court addressed the importance of the court ensuring that the right of a successful litigant to enjoy the fruits of his judgement.
11.The Applicant further submitted that he was entitled to the costs of the Judicial Review application.
Analysis and Determination
12.The Court has considered the application herein and submissions by Counsel for the Applicant. The Court is of the view that the issues for determination are as set out by Counsel for the Applicant whether all conditions under Section 21 of the Government Proceedings Act have been complied with for issuance of an order of mandamus and whether the Respondent is entitled to pay costs of the suit and the application herein.
13.Before the court issues an order of mandamus to compel settlement of a decree or order of a court, there must be proof that the provisions of section 21 of the Government Proceedings Act have been complied with. The said section provides that;
(1)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
(2)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.
(3)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.
14.In the case of Republic vs. Permanent Secretary Office of The President Ministry of Internal Security & Another ex-parte Nassir Mwandihi [2014] eKLR, Odunga, J. (as he then was), held as follows:
“…It must be remembered that an application for an order of mandamus seeking an order compelling the Government to satisfy a decree is a very elaborate procedure. Before the Court issues such an order, there must be proof that the provisions of the Government Proceedings Act have been complied [with] with respect to issuance of a certificate of costs and certificate of order against the Government. After the issuance of the aforesaid documents, just like in any application for mandamus, there must be a demand for payment made by or on behalf of the decree holder to the relevant department seeking payment since in an application for an order of mandamus, the law as a general rule requires a demand by the applicant for action and refusal as a prerequisite to the granting of an order, though there are exceptions to the rule…The said elaborate procedure is further meant to give adequate notice to the Government to make arrangements to satisfy the decree. The procedure, in my view, is not meant to relieve the Government from meeting its statutory obligations to satisfy decrees and orders of the Court.\" [Emphasis added]
15.In the present case, the applicant has shown proof that he filed a suit Kitui Chief Magistrates Court ELC case number 33 of 2023 against the Respondent for recovery of the sum of Kshs 10,263,750/- together with costs and interest. The Applicant has also shown that judgment was entered in her favour a decree was issued on 30th October 2023 and a certificate of stated costs was issued on the same date for a sum of Kshs 328,440/-. She also showed that she was issued a Certificate of Order Against Government dated 30th October 2023.
16.Further, the applicant has shown that the advocates on record demanded payment of the decretal sum through the letter dated 1st November 2023 addressed to the Respondent but the same was not paid.
17.Due to the failure of the Respondent to settle the decretal sum demanded, the only remedy available to the Ex parte Applicant was to institute judicial review proceedings and seek an order of mandamus to compel the Respondent to settle the decree. This position has been pronounced in several decisions of the High Court such as Republic vs. Attorney General & Another Exparte James Alfred Koroso [2013] eKLR wherein Odunga, J. (as he then was), held thus:
\"In the present case, the ex parte applicant has no other option of realising the fruits of his judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgment that he has been awarded is realized. Unless something is done, he will forever be left babysitting his barren decree. This state of affairs cannot be allowed to prevail under our current Constitutional dispensation in light of the provisions of Article 48 of the Constitution which enjoins the State to ensure access to justice for all persons. Access to justice cannot be said to have been ensured when persons in whose favour judgements have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgement due to roadblocks placed on their paths by actions or inactions of public officers…”
18.Similarly, in Republic vs. Attorney General & Another ex-parte Stephen Wanyee Roki [2016] eKLR, it was held thus:
“That being the position, execution under the Civil Procedure Rules is barred in so far as the County Governments are concerned. What then is the option available to a party in whose favour judgement has been decreed? ...It follows that the only remedy available to such a person is to institute judicial review proceedings and seek an order of mandamus compelling the County Government to settle the decree in question…” [Emphasis added]
19.The court considered the nature and scope of the remedy of mandamus and is guided by the case of Republic v County Government of Kiambu Ex Parte Laban J Macharia Muiruri [2021] eKLR where the court stated as follows;
“ I have considered the ex parte Applicant’s and Respondent’s pleadings and submissions, and I am also guided by the holding of the Court of Appeal on the nature of the remedy of mandamus in its decision in Republic vs Kenya National Examinations Council exparte Gathenji and 9 Others, [1997] e KLR. The said Court held as follows in this regard:
“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.”
20.From the foregoing provisions of the law, the authorities cited and the facts as set out in the Notice of Motion dated 26th December 2023, the court finds that the application has merit and the same is allowed in the following terms;
1.THAT an order for mandamus be and is hereby issued to the Secretary, National Land Commission being the Accounting Officer compelling him to pay the Applicant the sum of Kshs. 10,263,750/- being the amount due in Kitui Chief Magistrate\'s Court Environment and Land case number E33 of 2023 together with Kshs. 328,440/- being the certified costs together with interest at court rates from 30th October 2023 until payment in full.
2.Costs of this application are awarded to the ex parte Applicant.
3.An order of mandamus is hereby issued to the Respondent to pay the costs of this application.
Dated, Signed and Delivered at Kitui this 26th Day of September 2024
L. G. KIMANI
JUDGE
Judgement read in open Court and virtually in the presence of
Mwinzi for the Ex parte Applicant
No attendance for the Respondent