Donald Kisaka Mwanasi v Independent Electoral and Boundaries Commission [2018] KEHC 7692 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 691 OF 2017

IN THE MATTER OF: AN APPLICATION TO SEEK LEAVE TO COMMENCE JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF MANDAMUS AGAINST THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION

AND

IN THE MATTER OF SECTION 8 AND 9 OF THE LAW REFORM ACT CAP 26 OF THE LAWS OF KENYA

AND

IN THE MATTER OF THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ACT NO.  9 OF 2011

AND

IN THE MATTER OF THE HIGH COURT CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO.  12 OF 2013

BETWEEN

BISHOP DONALD KISAKA MWANASI........................APPLICANT

-VERSUS-

THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION....................................RESPONDENT

JUDGMENT

1. By a notice  of motion dated  8th February  2018, the exparte  applicant  Bishop Donald Kisaka Mawasi seeks from this court mandamus to compel  the  respondent  Independent Electoral and  Boundaries Commission to remit  a total of kshs  335,280 as per the ruling  and  reasons for  taxation dated 20th July  2017  in Petition  No. 12/2013  and  costs  of the application .

2. The application is supported  by the verifying affidavit of  Dr  John Khaminwa  sworn on 14th December  2017  and statutory statement dated 14th December 2017 accompanying the chamber  summons for leave.

3. According to the  applicant, vide  a judgment  in Civil  Appeal (Court of Appeal) No 280/2013 arising from High Court  Petition  No. 12/2013,  the respondent was ordered to pay to the applicant  herein who was  the appellant, costs of  the appeal  and  of the petition .

4. On  20th July  2017 bill of costs  was taxed at  an  all inclusive figure of kshs 335,280 against  the  respondent but that todate, the respondent has refused failed and or neglected to settle hence these  proceedings.

5. Further, that Section 13(2) of the Independent Electoral and Boundaries Commission Act bars execution against the  Commission, placing it under  Cap 40( Government Proceedings Act hence the applicant  has no  other means of enforcing  the recovery  of the taxed costs  due to him.

6. The application was not opposed by the respondent whose counsel Mr Karani urged the court to grant mandamus but without costs as the Commission was seeking for funds to settle the taxed costs.

7. Miss Gathua advocate urged the application on behalf of her client reiterating the statutory statement and the verifying affidavit.

8. Having considered  the  motion for  mandamus  as argued  and as  presented,  in the absence of any evidence  of challenge  to the  taxed costs  and  as there is no other alternative  remedy for the applicant  to resort  to, to recover  his taxed  costs, I am  satisfied that the Independent Electoral and Boundaries Commission is under statutory duty to settle the applicant’s costs  as taxed, being an obligation to  obey  a court order  which  remains  unchallenged.

9. Accordingly, I find the motion for mandamus merited.  I issue mandamus compelling the respondent Independent Electoral and Boundaries Commission to settle  the  taxed  costs in the sum  of  kshs  335,280 within the next 60  days  from the date of this judgment and in default, the notice to show cause  why contempt  of court order proceedings  should not be commenced  shall issue  as per  Section 30  of the Contempt  of Court Act and the said NTSC shall be set down for hearing  thirty days  after service of the notice to show cause on the respondent’s Chief Executive Officer/Accounting Officer for the time being, in office, in accordance with Section  21  of the Government  Proceedings Act.

10. To avoid  escalation of more costs  and  as the respondents  is a public entity which draws  its funds  from the public coffers, and to  avoid  over burdening  the tax  payer,  I hereby order that each party shall  bear their own costs of these proceedings.

11. Orders accordingly.

Dated, signed and delivered in open court at Nairobi this 27th day of March, 2018.

R.E.ABURILI

JUDGE

In the presence of:

Mr Karani for the respondent

Mr Mc Ronald h/b for Dr Khaminwa for the applicant

CA: Kombo