Republic v Principal Secretary Ministry of Interior and Coordination of National, Government & Chief Executive Officer and/or Chairman IEBC; Ex Parte Applicants: Mwirigi Beneddite Njeri &John; Mwitumi Mwaniki [2020] KEHC 8335 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

JUDICIAL REVIEW NO. 9 OF 2018

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

VERSUS

THE PRINCIPAL SECRETARY MINISTRY OF INTERIOR AND COORDINATION OF NATIONAL

GOVERNMENT.................................................................................................................1ST RESPONDENT

THE CHIEF EXECUTIVE OFFICER AND/OR THE CHAIRMAN IEBC...............2ND RESPONDENT

MWIRIGI BENEDDITE NJERI & JOHN MWITUMI MWANIKI.................EX PARTE APPLICANTS

JUDGMENT

1. The ex parte applicants seek an order of mandamus to compel each of the respondents to pay a sum of Kshs 4,487,273. 50 being half of the decretal sum awarded in Murang’a Chief Magistrates Court Civil case No. 12 of 2017. They also pray for costs.

2. On 19th September 2018, the ex parte applicants obtained leave to a writ of mandamus. The substantive notice of motion was filed on 20th September 2018.

3. It is instructive that whereas the statement in support of the notice of motion refers to two additional reliefs (an order for accrued interest; and, an order for arrest or committal of the respondents in default) no such reliefs are sought in the notice of motion.

4. I accordingly decline to grant an order for payment of accrued interest or for warrants of arrest against the respondents or their committal to civil jail in default of payment of the above sums.

5. The ex parte applicants initially sued the respondents in the High Court at Murang’a in Civil Suit No. 53 of 2013. The suit was later transferred to the Murang’a Chief Magistrates Court as Civil case No. 12 of 2017. That suit was brought on behalf of the estate of Waithanji Mwaniki (hereafter the deceased)

6. The deceased was employed by the 2nd respondent as a Returning Officer. On 4th March 2013, he was transporting ballot boxes from Kiruri Polling Station to the Kangema Tallying Centre when he was shot dead by an Administration Police Officer guarding the vehicle.

7. I am satisfied that a final decree was issued on 26th April 2018 for the principal sum of Kshs 8,412,032 to be shared equally between the two respondents. After adding interest and costs, each of the respondents was required to pay Kshs 4,487,273. 50. I have also seen the certificate of order against the governmentissued on 18th July 2018 under Order 29 Rule 3 of the Civil Procedure Rules. I have also seen the two demands for payment dated 19th July 2018 addressed to the Attorney General on behalf of the 1st respondent; and, to J. K. Kibicho Advocates, counsel on record for the 2nd respondent.

8. The respondents did not reply to the motion. They did not also appear at the hearing on 27th January 2020. I was satisfied that they were served from the affidavit of service filed on even date. The averments by the ex parte applicants are thus uncontroverted.

9. Regarding the claim against the 2nd respondent, I note that the Independent Electoral and Boundaries Commission (IEBC) is an independent constitutional commission created by Article 88 of the Constitution. By dint of Article 253 the Commission is a body corporate with perpetual succession; and, capable of suing and being sued in its corporate name.

10. Section 13 (2) of the Independent Electoral and Boundaries Act   on the other hand provides that any legal proceedings for execution of judgments against the Commission shall be subject to the Government Proceedings Act.

11. I thus order that mandamus shall issue against the 1st respondent (The Principal Secretary Ministry of Interior And Coordination of National Government); and, also to the Chief Executive Officer of the 2nd respondent to each pay to the ex parte applicants Kshs 4,487,273. 50 being half of the decree issued in Murang’a Chief Magistrates Court Civil case No. 12 of 2017.

12. For the reasons outlined in paragraphs 3 and 4 of this judgment, I decline to order for payment of accrued interest; or, for warrants of arrest against the respondents; or, for their committal to civil jail in default of payment of the above sums.

13. I make no order on costs.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 18th day of February 2020.

KANYI KIMONDO

JUDGE

Judgment read in open Court in the presence of:-

No appearance by counsel for the ex-parte applicants.

No appearance by counsel for the for the 1st respondent.

Ms. Jayo holding brief for Mr. Kibicho for the 2nd respondent.

Ms. Dorcas & Ms. Elizabeth, Court Assistants.