Republic v County Secretary Bomet County Government & another; Korir (suing as the Legal Representative of) Evans Kipngeno (Deceased) (Exparte Applicant) [2022] KEHC 13750 (KLR)

Republic v County Secretary Bomet County Government & another; Korir (suing as the Legal Representative of) Evans Kipngeno (Deceased) (Exparte Applicant) (Judicial Review 1 of 2022) [2022] KEHC 13750 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13750 (KLR)

Republic of Kenya

In the High Court at Kericho

Judicial Review 1 of 2022

AN Ongeri, J

October 7, 2022

Between

Republic

Applicant

and

County Secretary Bomet County Government

1st Respondent

Chief Officer, Finance/County Treasurer Bomet County Government

2nd Respondent

and

Paul Kipkirui Korir (suing as the Legal Representative of) Evans Kipngeno (Deceased)

Exparte Applicant

Judgment

1. The ex-parte applicant (hereinafter referred to as the applicant) filed an application dated January 27, 2022 seeking leave to file a judicial review application seeking orders of mandamus against the respondents.

2. The leave was granted and the applicant filed a judicial review application dated May 23, 2022 seeking an order of mandamus to compel the respondents to release Kshs 596,455/= which was awarded to the plaintiff in Kericho CMCC No 169 of 2019.

3. The judicial review application was supported by the affidavit of the applicant dated May 23, 2022.

4. The applicant avers that on November 26, 2020 judgment was delivered in his favour in Kericho CMCC No 169 of 2019, subsequently, the applicant was issued with a decree in the sum of Kshs 596,455/=.

5. The applicant was apprehensive that the respondents herein would not honour the judgment in the said case and as a result he was likely to suffer irreparable loss and damages.

6. The applicant filed written submissions which I have duly considered.

7. The applicant in his submissions reiterated that judgment was delivered in his favour in Kericho CMCC No 169 of 2019, subsequently, the applicant was issued with a decree in the sum of Kshs 596,455/= and the respondents despite being served with a court order failed to comply with the same and had not challenged the said judgment in any competent court within the republic, thereby depriving the applicant fruits of the judgment.

8. The applicant contended that filing this application was the only recourse available to him, to enable him obtain the fruits of the judgment in his favour since execution cannot be issued against the government as provided for under section 21 (4) of the Government Proceedings Act. The applicant cited the Court of Appeal case of R v Kenya National Examination Council ex-parte Gathengi & 8 Ors [1997] eKLR.

9. The applicant while taking cognizance of the fact that the court has the discretion to award costs, submitted that costs follow the event, in this case the respondents had neglected and/or reneged to pay the decretal amount which necessitated filing of the instant application and as such should be ordered to bear the costs of the application.

10. The respondents did not file any responses to the said application and neither did they appear in court to oppose the same.

11. I find that the said application is not opposed and the same is allowed in terms of prayer (a) of the application dated May 23, 2022.

Delivered, dated and signed at Kericho this 7th day of October, 2022AN ONGERIJUDGEJUDICIAL REVIEW NO.1 OF 2022 Page 2