Republic v Permanent Secretary Ministry of Environment & Mineral Resources,Permanent Secretary Ministry of Lands,Attorney General, Ex-parte Joseph Bradley Waweru Gitari, [2013] KEHC 6152 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

JR CASE NO. 281 OF 2012

REPUBLIC .....................................................................APPLICANT

VERSUS

PERMANENT SECRETARY

MINISTRY OF ENVIRONMENT

& MINERAL RESOURCES....................................1ST RESPONDENT

PERMANENT SECRETARY

MINISTRY OF LANDS..........................................2ND RESPONDENT

ATTORNEY GENERAL ........................................3RD RESPONDENT

EX-PARTE

JOSEPH BRADLEY WAWERU GITARI

JUDGEMENT

Through the notice of motion application dated 14th August, 2012 the ex-parte applicant Joseph Bradley Waweru Gitaru prays for an order of mandamus compelling the permanent secretaries for the Ministry of Environment and Natural Resources and Ministry of Lands being the 1st  and 2nd respondents respectively to pay him “the sum of Kshs.1,135,007. 59 being the decretal amount in Chief Magistrate’s Court Civil Case No. 209 of 2003 at Milimani Commercial Courts, Nairobi which sum is inclusive of kshs.69,355/= being the certified costs thereon together with interest thereon at 12% per annum from 14th January, 2010 to 14th June, 2012. ”

According to the statutory statement and verifying affidavit, the ex-parte applicant sued one Agnes Njeri Muiruri in Nairobi Milimani Commercial Courts CMCC No. 209 of 2003.  The said Agnes Njeri Muiruri roped in the 1st and 2nd respondents herein as third parties.  Judgment was subsequently entered against the two respondents in favour of the applicant.  A certificate of order was issued against the Government on 17th April, 2010.  It is the applicant’s case that despite the said order being served on the respondents, they have failed to pay the decretal amount.  The 3rd respondent is the Attorney General of the Republic of Kenya and is in these proceedings by virtue of his constitutional mandate.

The application was opposed through the grounds of opposition dated 22nd May, 2013.  It is the respondents’ case that the application is defective since it is not directed to a specific officer against whom the orders are sought.  On this ground, I must say that I have looked at the application and find that the same is directed at the permanent secretaries of two specified ministries.  They are the accounting officers of those ministries and they are responsible for meeting court orders.  This particular ground of opposition has no merit and it fails.

The second ground of opposition is that the applicant had not taken any steps to seek payment before filing this application.  It is true that for an order of mandamus to issue, an applicant must demonstrate that he has demanded the performance of a statutory duty by a public officer and the officer nevertheless refused, neglected or failed to perform the duty.  In the application before this court, the ex-parte applicant has exhibited a letter dated 2nd September, 2010 in which his counsel is asking the 3rd respondent to direct the 1st and 2nd respondents to discharge the certificate of order.  This clearly shows that the respondents were requested to execute their obligations but they failed to do so.

Another ground of opposition is that the order is being sought to be issued against a non-existent ministry or officer.  I presume that this argument is in respect to the 1st respondent.  At the time this matter was filed the 1st respondent was in existence. There must be a successor to that ministry or officer.  That is the ministry or officer obligated to pay the decretal amount.  An order of mandamus is therefore issuable in the circumstances of this case.

Looking at the evidence placed before the court it is clear that the respondents have refused or failed to comply with their statutory duties.  An order of mandamus is therefore an available remedy in the circumstances.  The application is therefore allowed and an order of mandamus is issued directing the 1st and 2nd respondents jointly and severally to pay the sum of Kshs.1,135,007. 59 with interest at court rates with effect from 14th June, 2012 till payment in full.  The applicant will also get the costs of the application.

Dated, signed and delivered at Nairobi this 18th day of June , 2013

W. K. KORIR,

JUDGE