Municipal Council of Machakos v Francis Alexander Kimangi Muindi [2015] KEHC 6107 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

MISC. CIVIL APPLICATION NO. 23  OF 2012

IN THE MATTER OF AN APPLICATION BY FRANCIS ALEXANDER KIMANGI MUINDI

APPLICATION FOR JUDICIAL REVIEW FOR AN ORDER OF MANDAMUS

AND

IN THE MATTER OF EXECUTION OF DECREE IN HCCC NO. 2630 OF 1981

BETWEEN

THE REPUBLIC

AND

MUNICIPAL COUNCIL OF MACHAKOS………………………… RESPONDENT

VERSUS

FRANCIS ALEXANDER KIMANGI MUINDI ........................................ APPLICANT

R U L I N G

1.     The application dated 10/6/2013 is brought under Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1A & 3A of the Civil Procedure Act (Cap 21); the inherent powers of court and other enabling provisions of law.

2.   The application seeks the following orders:-

1. “(Spent).

2. That appropriate directions be given with regard to the execution of the decree inHCCC No. 2630 of 1981.

3. ThattheMachakos County Governmenthaving taken over the assets and liabilities of theMachakos Municipal Councilbe compelled through its interim County Secretary to satisfy the decree inHCCC No. 2630of 1981.

4. Thatthe costs of this application be borne by the said Government.”

3.   The exparte Applicant, Francis Alexander Kimangi Muindi (hereinafter Applicant) has deponed that on 29/6/2011, this court decreed in HCCC No. 2630/1981 that the Municipal Council of Machakos do pay him the sum of Kshs.7,815,680/= together with costs and interest.  Subsequently, the Municipal Council of Machakos was ordered by order of mandamus to satisfy the decree but refused to satisfy the same.  That following the devolution process, all the functions of the Municipal Council of Machakos were taken over by the Machakos County Government.  Efforts made to have the Machakos County Government to make good the payment have not born any fruit.

4.   The application is opposed.  According to replying affidavit by Francis Mwaka, the Secretary to the County Government of Machakos, the Respondent has not refused to satisfy the decree but is unable to pay the money in a lump sum as its resources are constrained.  It is further averred that the Applicant should come out clearly on the nature of the directions sought under Order 22 rule 7 (2) (j).

5.    During the hearing of the application, the parties relied on the affidavit evidence.

6.   The application is essentially not opposed save for the mode of payment.

7.    On the question of directions, I agree with the Respondent that the Applicant ought to seek specific directions as enumerated under Order 22 rule 7 (2)(j).

8.   The Applicant is therefore at liberty to take any steps against the Respondent as provided under Order 22 rule 7 (2) (j).  Costs to the Applicant.

………………………………………

B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 18thday of February  2015.

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B. THURANIRA JADEN

JUDGE