Republic v Principal Secretary, Ministry of Interior & another; Mulusia (Exparte) [2022] KEHC 9767 (KLR)

Republic v Principal Secretary, Ministry of Interior & another; Mulusia (Exparte) (Judicial Review E004 of 2022) [2022] KEHC 9767 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9767 (KLR)

Republic of Kenya

In the High Court at Migori

Judicial Review E004 of 2022

RPV Wendoh, J

July 21, 2022

IN THE MATTER OF AN APPLICATION BY SHADRACK OTIENO MULUSIA FOR LEAVE OF COURT TO APPLY FOR ORDERS OF MANDAMUS AND IN THE MATTER OF ORDER 22 & 29 OF THE CIVIL PROCEDURE ACT, CAP 26 LAWS OF KENYA AND IN THE MATTER OF EXECUTION OF A DECREE FOR KSHS. 190,080/= AND IN THE MATTER OF ORDER 53 (1) CIVIL PROCEDURE RULES

Between

Republic

Applicant

and

Principal Secretary, Ministry of Interior

1st Respondent

Attorney General

2nd Respondent

and

Shadrack Otieno Mulusia

Exparte

Judgment

1. For determination is the Notice of Motion dated 17/3/2022 brought under the provisions of Order 53 Rule (1) - (6) of the Civil Procedure Rules. The ex - parte applicant through the firm of Kerario Marwa & Co. Advocates seeks the following orders: -i.That an order of Mandamus do issue from this court commanding the respondents to pay the applicant the decretal sum of Kshs. 190,080/= together with interest thereon at 14% upto the date of payment, being the decreed sum in Migori CMCC No. 896 of 2018. ii.Costs of the application be borne by the respondents.

2. The application is based on the statement of facts and the verifying affidavit in support of the application dated December 16, 2021.

3. According to the ex-parte applicant, he obtained judgment in his favour vide Migori CMCCC No. 896 of 2018 Shadrack Otieno Mulusia v Inspector General of Police & The Honourable Attorney General for a total of Kshs. 216,691/= together with interest.

4. The ex-parte applicant avers that the respondents have refused to honour the court decree to 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 an order of mandamus to compel the respondents to pay the applicant the decreed sum of Kshs. 216,691/= with interest upto the date of payment.

5. The application is not opposed. Despite being served severally, the respondents chose not to participate in these proceedings. There is an affidavit of service dated 10/5/2022 deponed by George Ochieng Bala on record.

6. I have considered the application and the supporting documents annexed to the verifying affidavit as “SOM1” and “SOM3” being the Certificate of Order against the Government dated 20/8/2021 and affidavit of service respectively.

7. It is not in dispute that a judgement was entered in favour of the ex-parte applicant and the court made an award of Kshs. 190,440/= being the decretal sum together with costs. The trial court further directed that the interest on the special damages should run from the date of filing suit at the rate of 14% till payment in full.

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

9. In the case of Republic v Attorney General & another Ex-parte Ongata Works Limited [2016] eKLR Odunga J referred to the case of R (Regina) v Dudsheath, Ex Parte, Meredith [1950] 2 ALL ER 741, at 743, where Lord Goddard CJ 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... "

10. Before an order of Mandamus can issue, the ex-parte applicant must comply with Section 21 of the Government Proceedings Act. In Kisya Investments Ltd v The AG [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 20/8/2021 was issued pursuant to Section 21 of the Government Proceedings Act.

11. Having found that the ex-parte applicant is fully compliant, the court finds that he is deserving of the order of Mandamus. The application is allowed as prayed and an order of mandamus do issue compelling the respondents to pay the applicant the decretal sum together with interest at 14% upto date it is paid in full. Costs of this application are assessed at Kshs. 20,000/= in favour of the ex-parte applicant. It is so ordered

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