Stanley Bundi v Principal Secretary Ministry of Interior & Co-Ordination of National Government [2018] KEHC 7964 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  230 OF 2017

IN THE MATTER OF AN APPLICATION TO APPLY FOR AN ORDER OF MANDAMUS

AND

IN THE MATTER OF THE CHIEF MAGISTRATE’S COURT OF KENYA AT NAIROBI

CHIEF MAGISTRATE’S CIVIL CASE NO.  2137 OF 2011, STANLEY BUNDI -VS – HON. THE ATTORNEY GENERAL

BETWEEN

STANLEY BUNDI……………………….....……………….....……….  APPLICANT

VERSUS

PRINCIPAL SECRETARY MINISTRY OF INTERIOR &

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

JUDGMENT

1. By a notice of motion dated  13th June  2017  and filed  in court on  16th June 2017 pursuant to the leave of court granted on  29th  May 2017, the exparte applicant  Stanley Bundi seeks  from this court leave to institute Judicial Review proceedings for orders of mandamus compelling the Principal Secretary Ministry of Interior and Coordination of  National  Government  to forthwith pay to the applicant, an amount of kshs 943,585. 00 together with accrued interest thereon at the  rate of  12% per annum until payment  in full. The applicant also seeks for costs of the application.

2. The application which is not opposed by the respondent is based on the facts contained in the statutory statement and verifying affidavit sworn by Stanley Bundi on 4th May 2017.

3. The exparte applicant’s case is that he is in possession of a decree of the court in Milimani CMCC 2137/2011 wherein he had sued the Attorney General on behalf of   the Ministry of Interior and Coordination of National Government.

4. The decretal sum awarded to the applicant by the court and  as  per the decree  and  certificate of  order against  the Government  is kshs  620,000,000 which amount continues  to attract interest  at  12% per annum from 21st June 2011 todate and that as at  15th January  2017 when certificate of Order Against the Government was issued, the amount had reached  kshs  943,585 inclusive  of costs and interest and that the interest at 12%  per annum continues  to accrue  on the awarded  sum.

5. The applicant  claims  that  it is  the legal duty and  obligation of the  respondent to settle decree  of a court  as ordered  and  that   the applicant had  effected  service of the decree, and  certificate of order against the Government on the respondent but that the respondent had  neglected to pay the decretal  sum hence  these proceedings.

6. When the matter came up for hearing, on each occasion, the respondent’s counsels who appeared kept informing the court that they had requested for payment and that they had been supplied with a copy of judgment giving rise to decree.  On  13th November  2011 they informed the court that they had notified  the Ministry to pay after submitting to them a copy of judgment and that the Ministry was compiling all decrees against it for settlement although they had some liquidity issues hence they had sought  more time  to settle.

7. On the said latter date, the court granted the respondent 45 days to settle but by  6th February  2018  when the matter came up for heating, there  was  no report of settlement, with Miss Daido counsel for the  respondent submitting  that they had  advised  the Ministry  to pay and that they  needed  more time  to settle.

8. In my view, the only issue for determination is whether the applicant is entitled to the prayers sought.

9. The applicant has exhibited a decree and certificate of Order Against the Government as required under Section 21 of the Government Proceedings Act, Cap 40 Laws of Kenya, and served upon the same the Accounting Officer of the Ministry concerned. That  fact is not controverted by the respondent.

10. As no execution against the Government can issue, the only mechanism available for the applicant to enforce decree of the court is by way of mandamus to compel the Accounting Officer responsible for the respective Ministry to settle the decree.  The Accounting Officer is under a statutory duty under Section 21 of the Government Proceedings Act to settle decree of a court.  That being  the case, and  as the applicant cannot carry  with him  a barren decree  forever while the  respondent  keeps asking for time to pay in perpetuity, I find and hold that the applicant has demonstrated that he is entitled to Judicial Review order of mandamus sought.

11. Accordingly, I grant him mandamus compelling the Permanent Secretary/Accounting Officer. Ministry of Interior and  National government to settle decree as shown by the certificate  of Order Against the Government  dated  15th February 2017  and  Decree which was issued on 23rd March 2016  for the total sum of  kshs  943,585. 00 together with accrued interest at kshs 12% per annum until  payment  in full.

12. In order to prevent escalation of costs in this matter at the expense of the Kenyan tax payer, I order that each party shall bear their own costs of these Judicial Review proceedings.

13. The order of mandamus herein shall issue as decree of  this court  to be executed against the Principal Secretary Ministry of Interior and Coordination of National Government and the amount due to be settled within 60 days from the date hereof.  In default, a notice to show cause to issue against Principal Secretary/Accounting Officer Ministry of Interior and Coordination of National Government to show cause why contempt of court proceedings should not be commenced against him/her.

14. Orders accordingly.

Dated, signed and delivered in open court at Nairobi this 6th day of March, 2018.

R.E. ABURILI

JUDGE

In the presence of:

Mr Ombwayo h/b for Mr Mwangi for the exparte applicant

Mr Munene h/b for Miss Daido for the Respondents

CA: Kombo