Suryakant M. Savani v Attorney-General & Principal Secretary, Commerce & Tourism, Ministry of Tourism [2017] KEHC 3048 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

JUDICIAL REVIEW NO. 19 OF 2017

IN THE MATTER OF:  APPLICATION BY SURYAKANT MOHANLAL SAVANI FOR LEAVE TO APPLY FOR JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF MANDAMUS

AND

IN THE MATTER OF: AN APPLICATION FOR JUDICAL REVIEW FOR ORDERS OF MANDAMUS TO COMPEL THE RESPONDENTS TO PAY THE EX PARTE APPLICANT THE DECRETAL SUM OF KSHS. 12,132,315. 74 ARISING FROM JUDGMENT IN ELC CIVIL SUIT NO. 18 OF 2015 MOMBASA

IN THE MATTER OF: THE CIVIL PROCEDURE ACT AND THE LAW REFORM ACT

BETWEEN

SURYAKANT M. SAVANI……………………....…EX PARTE APPLICANT

VERSUS

1. THE HON. ATTORNEY-GENERAL

2. THE PRINCIPAL SECRETARY, COMMERCE & TOURISM, MINISTRY

OF TOURISM…………………………………..................RESPONDENTS

RULING OF THE COURT

The Application

1. By the Notice of Motion application dated and filed herein on 12rh May, 2017 and brought under Order 53, rules 3 and 4 of the Civil Procedure Rules, and Sections 8 and 8 of the Law Reform Act, the ex parte Applicant prays for an order of mandamus to issue compelling the Principal Secretary Commerce and Tourism, Ministry of Tourism, the 2nd Respondent, to pay the ex parte Applicant the decretal sum of Kshs. 11,223,148. 98 arising from Judgment in ELC Civil Suit No. 18 of 2015 in Mombasa.  The ex parte Applicant also prays for the costs of the motion.

2. The motion is supported by the statement of the ex parte Applicant filed on 2nd May, 2017 and a verifying affidavit by the ex parte Applicant sworn on 26th April, 2017 both in support of the Chamber Summons dated 26th April, 2017.

3. The ex parte Applicant’s case is that he filed suit on 11th February, 2015 against the Respondents at the High Court of Kenya in Mombasa in ELC Civil Suit No. 18 of 2015. The Respondents after having been duly served with summons and pleadings entered appearance and filed defence.   The ex parte Applicant lodged an application dated 22nd June, 2015 in court against the Respondents seeking entry of Judgment against the Respondents as they had no credible defence to the ex parte Applicant’s claim.   On 3rd November, 2015, the court delivered its Ruling and granted the ex parte Applicant’s prayers as set out in the application dated 22nd June, 2015.  The Respondents did not appeal nor seek to review the Ruling that the court delivered on 3rd November, 2015.  The ex parte Applicant duly extracted the decree for the decrial sum of Kshs. 11,223,148. 89/= together with the certificate of costs of Kshs. 909,136. 85/=.   The court then proceeded to issue to the ex parte Applicant a Certificate of Order against the government which was duly served on the Respondents by the ex parte Applicant.  Despite having been served with the Certificate of Order against the government directing the Respondents to pay the decretal amount and costs together with interest until payment in full, the Respondents have neglected and/or refused to pay the stated amounts thus rendering this Judicial Review proceedings necessary.  The ex parte Applicant has suffered loss and continues to suffer loss as the Respondents have refused to satisfy the Applicant’s claim.  The ex parte Applicant being a successful litigant believes he is entitled to the fruits of his Judgment and the Respondents’ actions of refusing to pay the aforestated amounts is contrary to the above principle.

The Response

4. The Respondents have not opposed the motion in any way.  When the matter came up for hearing inter partes Mr. Wafula for the ex parte Applicant submitted that he relied fully on the application, while M/S Kiti for the Respondents submitted that while the Respondents admitted the claim in the motion the only issue is that of payment which takes time to effect.

The Determination

5. I have carefully considered the motion.  It is not in dispute that the sums claimed by the ex parte Applicant are due.  The same is as a result of lawful processes now clearly admitted, and also forms part of the record herein.  This court notes that the prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities of all kinds.  Like other prerogative remedies, it is normally granted on the application of a private litigant, thought it may equally well be used by one public authority against another.  The commonest employment of mandamus is as a weapon in the hands of the ordinary citizen, when a public authority fails to do its duty.  Certiorari and prohibition deal with wrongful action, while mandamus deals with wrongful inaction.   In this case the wrongful inaction by the 2nd Respondent will attract the remedy of mandamus which is hereby issued.

6. In the upshot the motion dated and filed herein on 12th May, 2017 by the ex parte Applicant is allowed as prayed with costs to the ex parte Applicant.

Orders accordingly.

Dated, Signed and Delivered in Mombasa this 5th day of October, 2017.

E. K. O. OGOLA

JUDGE

In the presence of:

Mr. Ngare for 1st and 2nd Respondents

No Appearance for Applicant

Mr. Kaunda Court Assistant