High Court at Nairobi (Milimani Law Courts)
Republic v Director General of East African Railways Corporation Ex-Parte George Nume Kaggwa
Republic v Director General of East African Railways Corporation Ex-Parte George Nume Kaggwa  eKLR
The Republic v Director-General of East African
Railways Corporation, Ex parte Kaggwa
High Court, Nairobi 14th, 16th, 22nd November 1977
Judicial review - mandamus - application for order for payment of judgment debt - damages for wrongful dismissal by East African Railways - application for mandamus to compel Director-General of Railways Corporation to make payment - no person holding office.
Judicial review - mandamus - discretion - bars to exercise of discretion - alternative remedy - judgment debt owed by East African Railways - assets of railways in custodial possession - committee appointed by Government to consider future - possibility of satisfaction of judgment debt by committee or in winding-up of railways.
Judicial review - mandamus - discretion - bars to exercise of discretion - ineffectiveness of order - judgment debt owed by East African Railways - railways without funds to meet debt - no holder of office empowered to make payment - East African Railways Act (Laws of East African Community, cap 18 ), section 91.
Judicial review - mandamus - discretion – bars to exercise of discretion - judicial interference with executive.
The East African Railways Corporation was established by the three partner States of the East African Community. It was funded by the regions directly; but for some years the regions had failed to remit funds and in 1976 the corporations’ current bank account was substantially in debit. One of the corporation’s employees, the applicant, was dismissed in that year (his dismissal being in no way connected with the financial position at the time) and in 1977 he obtained a judgment for wrongful termination of employment against the corporation for Shs 146,000 plus costs and interests. Following the judgment the applicants advocate wrote to the Director-General of the corporation (as the officer empowered by the East African Railway Corporation Act, section 91, to pay any judgment debt) seeking payment. His letter was returned by the managing director of Kenya Railways stating that the whereabouts of the addressee were not known to him. The managing director of Kenya Railways had, in 1975, been appointed as Director-General of the corporation, but had declined to accept the position; instead he had been acting Director-General until 1977 when he took up his position with the Kenya Railways and vacated the position of Director-General of the corporation; since then, to the best of his knowledge, there had been no fresh appointment to the position of Director-General. The applicant maintained that both the corporation and its Director-General were still de jure in existence, although the corporation’s assets in Kenya had been taken into the custodial possession of the Kenya Government and a committee had been formed to discuss and deal with the assets and liabilities of the former East African Community and its institutions and corporations; unless the applicant could obtain satisfaction for his judgment soon, he might be deprived of his fruits. He therefore applied for an order of mandamus against the Director -General for the payment of his judgment debts and taxed costs, and for the attachment and sale of the corporation’s property in execution.
Refusing the application, that mandamus did not lie as a matter of course against a public officer and the court discretion would be exercised against the applicant because (1) there being no person de facto in the office of the Director-General, it could not properly be said that there had been a failure or refusal by the Director-General to perform a public duty; (ii) the applicant had an alternative remedy by seeking satisfaction either from the committee or in any eventual winding up of the corporation; (iii) without there being de facto a Director-General of the corporation there could be no adequate supervision of an order by the Court and, as the corporation was without funds, any order to make payment would be ineffective; and (iv) where, as here, there were bars on the exercise of the courts discretion to make an order of mandamus, although the bars were not absolute, the exercise of that discretion in favour of the applicant would constitute judicial interference with the executive arm of the Government.
Re Bristol and North Somerset Railway Co (1877) 3 QBD 10, R v Sarun (Bishop)  1 KB 466 and R v Dunsheath, ex parte Meredith  2 All ER 741 applied.
Shah v Attorney-General (Uganda) (No 3)  EA 543 distinguished.
Cases referred to in judgment:
Bristol and North Somerset Railway Co (1877) 3 QBD 10; 47 LJQB 48; 37 LT 527.
Kaggwa v East African Railway Corporation (unreported), 11th August 1977, Kneller J (Civil Case No 2231 of 1976).
R v Dunsheath, ex parte Meredith  1 KB 127;  2 All ER 741.
R v Sarum (Bishop)  1 KB 466; [1914-15] All ER Rep 946; 85 LJKB 544; 114 LT 366.
Shah v Attorney General (Uganda) (No 3 )  EA 543.
George Nume Kaggwa applied to the High Court (Miscellaneous Civil Case No 209 of 1977) by leave granted on 21st September 1977 for an order of mandamus against the Director-General of East African Railways Corporation to enforce a judgment. The facts are set out in the judgment.
RK Mitra for Applicant.
JF Shields Principal State counsel and Mrs Onyango State counsel for the Respondent.