1. Pursuant to the leave of court, the ex-parte Applicant moved this court by way of a Notice of Motion dated 17th January, 2024 under Order 53 of the Civil Procedure Rules 2010, and Section 8(2) of the Law Reform Act – seeking for the
1) THAT this Honourable Court be pleased to grant judicial review orders and specifically: -
THAT AN ORDER OF MANDAMUS do issue for the purposes of removing into the High Court, the decree in the Chief Magistrates Court CMCC NO. 4355 OF 2009 and compelling the Respondent herein to satisfy the said decree by way of making payment thereof to the Applicant.
2) THAT costs be provided for.
2. The Application is based on the grounds on the face of it; on the Statutory Statement, and on the Verifying Affidavit of Robert Ndichu both dated 17th July, 2023.
3. The Applicant’s case is that a lawful decree was issued against the Respondent by court in Chief Magistrates Court CMCC NO. 4355 OF 2009. That the Respondent has avoided satisfying the decree, causing harm to the Applicant's physical and emotional well-being.
4. The Applicant maintains that he has demanded from the Respondent to fulfill the decree; however, that the Respondent has refused or neglected to comply. Accordingly, that the court has the jurisdiction to compel the Respondent to fulfill their legal duty; and granting the orders sought is in line with statute law, natural justice, and equity.
5. This Application is unopposed. Neither the Respondent nor the Interested Party participated in this suit, despite service.
6. After considering the material before this court, the issue for determination that arises is whether the Application is merited to grant judicial review orders of mandamus as sought.
7. It is settled law that before an order of mandamus is issued, an Applicant must abide by the procedure in Section 21 of Government Proceedings Act which provides:
“(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.”
8. Section 21 (3) of the said Act on the other hand provides:
“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.”
9. The circumstances under which judicial review order of mandamus are issued were discussed in the case Republic v Kenya National Examinations Council Ex Parte Gathenji & 8 Others Civil Appeal No 234 of 1996, where the Court of Appeal cited with approval, Halsbury’s Law of England, 4th Edition. Vol. 7 p. 111 para 89 thus:
"The order of mandamus is of most extensive remedial nature and is in form, of 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."...These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”
10. In the instant matter, the Applicant has moved this Court to compel the satisfaction of a judgment already decreed in its favor by a competent Court of law.
11. From the record filed in the court, there is evidence that a Certificate of Order against the Government was obtained and served to the Respondent together with the decree, and judgment. On record, there is a letter dated 13th April, 2017 by Counsel for the Ex-parte Applicant to the Respondent [Hon. Attorney General].
12. The letter reads to the effect that the Ex-parte Applicant had earlier sent to the Respondent a Decree and a Certificate of Order against the Government through a letter dated 23rd February, 2017 and previous correspondence.
13. From the foregoing, it is clear that the Ex-parte Applicant complied with Section 21 of Government Proceedings Act by obtaining from court a Certificate of Order against the Government, and serving the same to the Respondent.
14. In the premises, the Applicant has made a case for the grant of an order of mandamus, and I hereby grant the same in terms of prayers sought. The Notice of Motion dated 17th January, 2024 is merited and the same is allowed with cost.
It is so ordered.
1) THAT this Honourable Court be pleased to grant judicial review orders and specifically: -
THAT AN ORDER OF MANDAMUS do issue for the purposes of removing into the High Court, the decree in the Chief Magistrates Court CMCC NO. 4355 OF 2009 and compelling the Respondent herein to satisfy the said decree by way of making payment thereof to the Applicant.
2) THAT costs be provided for.
2. The Application is based on the grounds on the face of it; on the Statutory Statement, and on the Verifying Affidavit of Robert Ndichu both dated 17th July, 2023.
3. The Applicant’s case is that a lawful decree was issued against the Respondent by court in Chief Magistrates Court CMCC NO. 4355 OF 2009. That the Respondent has avoided satisfying the decree, causing harm to the Applicant's physical and emotional well-being.
4. The Applicant maintains that he has demanded from the Respondent to fulfill the decree; however, that the Respondent has refused or neglected to comply. Accordingly, that the court has the jurisdiction to compel the Respondent to fulfill their legal duty; and granting the orders sought is in line with statute law, natural justice, and equity.
5. This Application is unopposed. Neither the Respondent nor the Interested Party participated in this suit, despite service.
6. After considering the material before this court, the issue for determination that arises is whether the Application is merited to grant judicial review orders of mandamus as sought.
7. It is settled law that before an order of mandamus is issued, an Applicant must abide by the procedure in Section 21 of Government Proceedings Act which provides:
“(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.”
8. Section 21 (3) of the said Act on the other hand provides:
“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.”
9. The circumstances under which judicial review order of mandamus are issued were discussed in the case Republic v Kenya National Examinations Council Ex Parte Gathenji & 8 Others Civil Appeal No 234 of 1996, where the Court of Appeal cited with approval, Halsbury’s Law of England, 4th Edition. Vol. 7 p. 111 para 89 thus:
"The order of mandamus is of most extensive remedial nature and is in form, of 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."...These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”
10. In the instant matter, the Applicant has moved this Court to compel the satisfaction of a judgment already decreed in its favor by a competent Court of law.
11. From the record filed in the court, there is evidence that a Certificate of Order against the Government was obtained and served to the Respondent together with the decree, and judgment. On record, there is a letter dated 13th April, 2017 by Counsel for the Ex-parte Applicant to the Respondent [Hon. Attorney General].
12. The letter reads to the effect that the Ex-parte Applicant had earlier sent to the Respondent a Decree and a Certificate of Order against the Government through a letter dated 23rd February, 2017 and previous correspondence.
13. From the foregoing, it is clear that the Ex-parte Applicant complied with Section 21 of Government Proceedings Act by obtaining from court a Certificate of Order against the Government, and serving the same to the Respondent.
14. In the premises, the Applicant has made a case for the grant of an order of mandamus, and I hereby grant the same in terms of prayers sought. The Notice of Motion dated 17th January, 2024 is merited and the same is allowed with cost.
It is so ordered.