Republic v County Secretary of Migori County Government & 2 others; Hope Self Help Group through Richard Okumu Odongo (Exparte) [2022] KEHC 10017 (KLR)

Republic v County Secretary of Migori County Government & 2 others; Hope Self Help Group through Richard Okumu Odongo (Exparte) (Judicial Review E006 of 2021) [2022] KEHC 10017 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10017 (KLR)

Republic of Kenya

In the High Court at Migori

Judicial Review E006 of 2021

RPV Wendoh, J

July 21, 2022

IN THE MATTER OF AN APPLICATION BY HOPE SELF HELP GROUP through RICHARD OKUMU DONGO FOR AN ORDER OF MANDAMUS AND IN THE MATTER OF GOVERNMENT PROCEEDINGS ACT AND IN THE MATTER OF ORDER 22 & 29 OF THE CIVIL PROCEDURE RULES 2010 AND IN THE MATTER OF EXECUTION OF A DECREE FOR KSHS. 1, 731,518/= TOGETHER WITH INTEREST AND IN THE MATTER OF ORDER 53 (1) CIVIL PROCEDURE RULES 2010

Between

Republic

Applicant

and

County Secretary of Migori County Government

1st Respondent

Chief Officer Finance Migori County Government

2nd Respondent

Migori County Government

3rd Respondent

and

Hope Self Help Group through Richard Okumu Odongo

Exparte

Judgment

1The application for determination is a Notice of Motion dated 5/11/2021 brought under the provisions of Order 53 Rule 3 (1) - (3), 5, and 6 of the Civil Procedure Rules. The ex - parte applicant through the firm of Kerario Marwa & Co. Advocates seeks the following orders: -a.That an order of Mandamus do issue from this court commanding the respondents to pay the applicant the decretal sum of Kshs. 1,731,518/= together with interest at 14% upto the date of payment, the said sums being the decretal sum in Migori CMCC NO. 528 of 2018 in Migori HCCA No. 141 of 2019. b.Costs of the application be borne by the respondents.

2The application is based on grounds appearing on the face thereof, the statement of facts and the affidavit sworn by Richard Okumu Odongo dated 4/11/2021.

3According to the ex-parte applicant, he obtained judgment against the 3rd respondent in Migori CMCC No. 528 of 2018 and Migori HCCA No. 141 of 2019 for now a total of Kshs. 1,731,518/= which amount continues to attract interest at 14% till date of payment.

4The ex-parte applicant stated that the 1st and 2nd respondents have refused to honour the court decree and pay the applicant; that the Government Proceedings Act as read together with the Civil Procedure Act prohibit attachment of government properties in execution of court decrees and the only remedy available to the applicant is to apply for the order of mandamus to compel the Respondent to pay up.

5The application is not opposed. Despite numerous services, the respondents chose not to participate in these proceedings. On record is an affidavit of service dated 10/5/2022 sworn by George Ochieng Bala; the process server.

6I have considered the application and the supporting documents annexed to the affidavit in support as “ROO1” and “DOO2(a) & (b)” being the Certificate of Order against the Government, dated 12/8/2021, the affidavit of service and the stamped copies of the certificates respectively. I have also considered the submissions of the ex-parte applicant.

7It is not in dispute that a judgement was delivered in favour of the ex-parte applicant in Migori CMCC No. 528 of 2018 and in Migori HCCA No. 141 of 2019 and the court awarded a total of Kshs. 1,731,518/= being the decretal sum together with costs of the lower court and High court suit. The trial court further directed that the interest do run from the date of filing suit at the rate of 14% till payment in full.

8The ex-parte applicant is simply seeking an order of mandamus to compel the respondents to perform their public duty and satisfy the decree which they have failed to do to the detriment of the ex-parte applicant.

9In the case of Republicvs. Attorney General & Another Ex-parte Ongata Works Limited [2016] eKLR Odunga J referred to the case of R (Regina)vs. Dudsheath, Ex Parte, Meredith[1950] 2 ALL E.R. 741, AT 743, where Lord Goddard C. J. held as follows:It is important to remember that "mandamus" is neither a writ of course nor a writ of right, but that it will be granted if the duty is in the nature of a public duty, and specially affects the rights of an individual, provided there is no more appropriate remedy... "

10For an order of Mandamus can issue, the ex-parte applicant must comply with Section 21 of the Government Proceedings Act. In Kisya Investments Ltd -vs-The A. G. (2005) 1KLR 74, the Court explained why the strict and elaborate procedure under that section has to be followed, that is to allow the Government time to enable it to make arrangements to satisfy the decree. In this case, the ex-parte applicant has satisfied the above requirements and a Certificate of Order of costs dated 12/8/2021 and 23/8/2021 for the lower court and High court matters respectively were issued pursuant to Section 21 of the Government Proceedings Act.

11Having found that the ex-parte applicant is fully compliant, the court finds that he is deserving of an order of Mandamus. The application is allowed as prayed. Costs of this application is assessed at Kshs. 20,000/= in favour of the ex-parte applicant.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 21STDAY OF JULY, 2022. R. WENDOHJUDGEJudgment delivered in the presence ofNo appearance for the Ex-Parte Applicant.No appearance for the Respondents.Nyauke Court Assistant.