Republic v Principal Secretary, Ministry of Interior and Co-ordination of National Government & Attorney General Exparte James Odemba Okongo [2017] KEHC 4272 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  58 OF 2017

IN THE MATTER OF FAIR ADMINISTRATIVE ACTION ACT

AND

IN THE MATTER OF LAW REFORM ACT

AND

IN THE MATTER OF AN APPLICATION FOR AN ORDER OF MANDAMUS

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

VERSUS

THE PRINCIPAL SECRETARY, MINISTRY OF INTERIOR AND

CO-ORDINATION OF NATIONAL GOVERNMENT…......1ST RESPONDENT

THE HON. ATTORNEY GENERAL………...………….…2ND RESPONDENT

JAMES ODEMBA OKONGO….…………..………...EX PARTE APPLICANT

JUDGMENT

1. The exparte applicant herein JAMES ODEMBA OKONGO is the decree holder against the Government of Kenya in Constitutional petition No. 104/2009.  A decree in the  above  matter  was  issued  on 21st  March  2016, certificate  of costs issued on  29th  August   2016  and  Certificate  of Order Against  the Government   issued on  8th September  2016.

2. On  1st April,  2016, the applicant  demanded  for  settlement  of the  decretal  sum followed by  a letter  dated 15th April 2016.  On  6th April  2016   the  2nd  respondent  THE HON. ATTORNEY GENERAL wrote to the  advocates for  the applicant   asking  for documents  including   certified   copy of judgment  of  1st  November  2013, decree, certificate  of order against the  government  and  certificate  of costs.  The above  documents  were supplied to the Attorney General on 16th September  2016   and  a reminder  sent on  3rd  November  2016.  Todate, the decree has not been settled.

3. The application  dated  15th February  2017  seeks for  Judicial Review  orders of  mandamus directed at  the  1st  respondent The Principal Secretary Ministry of Interior and  Co-ordination  of  National  Government  compelling  him to settle  decree in Constitutional  Petition No. 104/2009.  The amount due is kshs 6,988,034 as per the attached decree.

4. The  application is  opposed by Mr Ogoso counsel for the respondents who  nonetheless states  through  grounds of opposition  filed and  oral submissions  that the respondents  are willing  to settle  the  decree  and  only need  time to  do so  due to  the  budgeting  procedures. Further, that the Ministry ids working with the National Treasury to ensure that the decretal sum is settled. In addition, it was submitted that the Ministry has not refused to pay the decretal sum but that if more time is given, then settlement will be made after going through the budgetary processes.

5. The application was argued by Mr Magina advocate for the applicant reiterating the grounds as contained in the statutory statement accompanying Chamber summons application for leave and supported by the annextures to the verifying affidavit.

6. I have  carefully  considered  the application for  mandamus  and the grounds of  opposition  together  with the parties’  advocates oral submissions.

7. The only issue for determination is whether the order of mandamus is available to the applicant.

8. Mandamus issues to compel a performance of a public or statutory duty.  In this  case, the legal   duty to  be performed  by the 1st   respondent is  settlement   of a decree  of the court   in Petition No.104/2009 as per  judgment of Honourable  Lenaola J ( as he then was)  delivered  on  1st November  2013.  There is no appeal against that judgment and the court record   shows that the applicant has complied with Section 21 of the Government Proceedings Act, Cap 40 Laws of Kenya.  There is no other way of compelling payment of the decretal sum other than by these Judicial Review proceedings as there can be no execution against the Government by way of attachment and sale of its assets which are public assets.

9. There is evidence on record that demand for settlement has been made and the respondents say they have not refused to settle.  They need time.  That  being the case, I find and hold that  the applicant  has  satisfied this court that he is entitled to the orders  sought which  I hereby grant   as  prayed for  in the notice of motion dated  15th February  2017 as against the 1st Respondent Accounting Officer.

10. I award costs of these Judicial Review proceedings to the applicant to be paid by the 1st respondent.

11. The decretal sum to be settled within 120 days from the date hereof.  In default, the applicant is at liberty to apply as appropriate.

Orders accordingly.

Dated, signed and delivered in open court this 10th April 2017.

R. E. ABURILI

JUDGE

In the presence of:

Mr Magina for the exparte applicant

Mr Ogoso for the respondents

CA: Mohamed