Republic v Attorney General & Principal Secretary Department of Public Works Exparte Nancy Wairimu Kirundi [2018] KEHC 8014 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  518 OF 2016

IN THE MATTER OF AN APPLICATION BY NANCY WAIRIMU KIRUNDI AND KAMUNYU KIRUNDI FOR JUDICIAL REVIEW ORDERS OF MANDAMUS AGAINST THE HONOURABLE   ATTORNEY GENERAL

AND

IN THE MATTER OF AN APPLICATION  BY NANCY WAIRIMU KIRUNDI  AND  KAMUNYU KIRUNDI FOR JUDICIAL REVIEW ORDERS OF MANDAMUS   AGAINST  THE PRINCIPAL SECRETARY  DEPARTMENT  OF PUBLIC WORKS , MINISTRY  OF LAND, HOUSING  AND  URBAN DEVELOPMENT

AND

IN THE MATTER OF THE GOVERNMENT PROCEEDINGS ACT, CAP 40 LAWS OF KENYA

AND

IN THE MATTER OF THE CHIEF MAGISTRATE’S COURT AT NAIROBI, MILIMANI COMMERCIAL COURTS, CIVIL SUIT NO.  1619 OF 2003

AND

IN THE MATTER OF SECTION 8 AND 9 OF THE LAW REFORM ACT AND ARTICLE 23 OF THE CONSTITUTION OF KENYA.

AND

IN THE MATTER OF ORDER 53   OF THE CIVIL PROCEDURE RULES [2010] AND ALL OTHER ENABLING PROVISIONS AND PROCEDURES OF THE LAW.

REPUBLIC………………………………..……………………..  APPLICANT

VERSUS

THE HONOURABLE ATTORNEY GENERAL.…..…...1ST RESPONDENT

THE PRINCIPAL SECRETARY

DEPARTMENT OF PUBLIC WORKS ………………...2ND RESPONDENT

EXPARTE

NANCY WAIRIMU KIRUNDI (suing as the legal administrator

Of the Estate of Emmanuel Kirundi Kamunyu (deceased)

JUDGMENT

1. The  exparte applicant Nancy Wairimu Kirundi (suing  as the legal administrator of the Estate of Emmanuel Kirundi  Kamunyu (deceased) seeks from this court, vide a notice of  motion dated  22nd February  2017  as amended, orders of mandamus  directed  at the respondent Accounting Officer Department of Public Works in the Ministry of Lands Housing and Urban Development, to pay to  her the sum of kshs  947,980 being the decretal sum in Chief Magistrate CC No. 1619 of 2003 at Nairobi together with kshs 111,035 being certified costs, interest  of  12% per annum from  24th January, 2012  until payment  in full.

2. Further, that the Accounting Officer of the said Department  do comply  and certify the decree  in  14 days  from date of  service  of  the order  and that  in default, notice to show  cause  do issue  against the  said respondent  why they should not  be cited  for contempt  of court.

3. The applicant also sought for costs of these proceedings and any other further reliefs that the court may deem just and   expedient to grant.

4. The application is supported by the affidavit sworn by Nancy Wairimu Kirundi and the statutory statement filed all accompanying the chamber summons for leave dated 7th October   2016.

5. The respondents appeared in this matter represented by the Honourable Attorney General and even conceded to the application for leave to apply for mandamus being granted on 13th December 2016 but they never filed any response in opposition to the substantive notice of motion subject of this judgment.

6. The exparte  applicant’s  case is that  she is in possession of a valid  decree of the court vide  Milimani Nairobi CM CC 1619/2003  wherein  she sued the 1st respondent for damages arising from a traffic  accident which occurred on 30th March 1999 involving the  deceased Emanuel Kirundi Kamunyu who was lawfully  travelling as a fare paying passenger aboard motor vehicle  registration No. KAE 674 W when the said motor vehicle   collided with Motor vehicle GK W920 occasioning to the  deceased  fatal injuries.

7. That  the driver of the GK motor vehicle  was  convicted  and  fined for causing  death by dangerous  driving  and the applicant  with another, instituted civil  suit  CMCC 1619/2003  vide plaint  dated 21st February 2003 and after the full hearing before  Honourable B.K. Ndungu (SPM) at Milimani Commercial Courts,  Nairobi, the  1st defendant  on behalf  of the  Ministry of Public Works ( as it  was then) was  found vicariously  100% liable  in negligence, with the driver  of the aforestated vehicle.

8. The trial court then on 18th May 2012   delivered its judgment in favour of the plaintiffs awarding kshs  2,025,394 plus costs of  shs  111,035  which were assessed  and on 30th April 2013 the certificate of order against the  government was issued in accordance with the law and  a decree drawn. That despite numerous requests to the respondents to satisfy decree, there has been no response hence these proceedings.

9. In the submissions filed on 20th September 2017 by the applicant, it was submitted that mandamus issues pursuant to Section 21(4) of the Government Proceedings Act Cap 40 Laws of Kenya since the law prohibits execution against the Government.

10. Further, that it is the obligation of the Government to settle its liabilities as decreed by the court.  Reliance was placed on Halsbury’s Laws of England 3rd Edition VOL 11 page 84  paragraph 159 on the elements   of mandamus, and a submission made that  the applicant, in view of Section 21(4) of the Government Proceedings  Act, is left  with no other  remedy but to apply for  mandamus to compel  settlement  of a decree issued by  a court of competent  jurisdiction.

11. Reliance  was placed on Shah  vs Attorney General No. 3 Kampala HC Miscellaneous No. 31/1969 cited in  Republic vs Dunsheath exparte  Meredith [1950] 2 ALL ER 741 and Yusuf Mutinda v Zakariya  Mugunyasoka[1957] EA 393  where  it  was held that mandamus  is not  a writ of right but  will be granted if the duty is in the nature of a public duty and especially if it affects  the rights  of an individual, provided  there is no more appropriate  remedy. Further that the person or authority to whom it is issued must be either under a statutory or legal duty to do something or not to do something; and the duty must of an imperative nature.

12. The applicant  urged the court  to exercise its discretion to grant  the order  sought  and  relied  on Section  21 of the  Government  Proceedings  Act.

13. I have carefully considered  the  exparte  applicant’s  motion  as supported by the verifying  affidavit  and  statutory  statement.

14. I have also considered the elaborate submissions and the documents  annexed to  the chamber  summons  for leave which  include  decree  and  certificate of order against  the Government  and the numerous  requests  for settlement  of this matter and decree in the Chief Magistrate’s Court where damages were awarded to the exparte applicant herein in a fatal accident claim.

15. I have also considered the fact that Mr Munene counsel for the respondents did intimate to court that they had a letter written to the Attorney General  by the 2nd and  respondent  confirming  that  money was being  factored  in the  2017/2018  budget  to settle  the subject decree and he even  asked for  a mention in November  2017.  This  was on 20th September 2017 and come 13th November  2017  when this matter was mentioned, it was stated by Miss Chimau for the  respondents that they had addressed the Ministry on the settlement but that  the budget had already been drawn  and they sought more time in the new term to know the position of payment.

16. This judgment is being delivered in the new term as requested by the respondents.  As  correctly  submitted by  the applicant’s  counsel, the law under Section 21(4) of the Government  Proceedings Act Cap  40  of Kenya prohibits  execution against  the  Government.  But the law does not leave the successful decree holder against the government empty handed with a barren decree. The applicant is given an opportunity to approach the court   by way of Judicial Review to seek for a remedy of mandamus, to compel settlement of a decree, for as long as a certificate of Order Against the Government has been issued and served upon   the Attorney General or the Accounting Officer of the relevant Ministry against  whom the  decree was issued.  This is the spirit and letter of Section 21(1) (2) (3) of the Government Proceedings Act.

17. In this case, there is sufficient evidence that there is a valid decree  of the court in CMCC No.1619/2003  and  certificate  of Order Against the Government was duly  issued  and  served upon the  respondents  and  demands  for settlement  made.

18. The respondents admittedly, have budgeted for the said decree and so what remains is disbursement, as the accounting officer is under a statutory duty to settle decree of a court of competent jurisdiction.

19. Accordingly, I find that the applicant has demonstrated that she is entitled to the Judicial Review orders. I issue  mandamus  directed  at the respondent Accounting Officer Department of Public Works in the Ministry of Lands Housing and Urban Development, to pay to  the applicant the sum of kshs  947,980 being the decretal sum in Chief Magistrate CC No. 1619 of 2003 at Nairobi together with kshs 111,035 being certified costs, interest  of  12% per annum from  24th January, 2012  until payment  in full.

20. I also award her costs of these proceedings.

21. I decline prayers No. 2 and  3 as they are  consequential  orders which have a totally different  procedure applicable, should the mandamus  hereto issued be disobeyed  and  are subject  to the provisions of Section  30 of the Contempt of Court Act. Prayer No. 5 is not specific. It is therefore declined.  Orders accordingly.

Dated, signed and delivered in open court at Nairobi this 8th day of March, 2018.

R.E. ABURILI

JUDGE

In the presence of:

Mr Githuka h/b for Mr Ndirangu for the exparte applicant

N/A for the Respondents [served]

CA: Kombo