REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

JUDICIAL REVIEW APPLICATION N0. 7 OF 2019

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

RESPONDENTS TO PAY THE DECRETAL AMOUNT OWED TO THE EX-PARTE APPLICANT

IN NYERI CHIEF MAGISTRATES COURT ELECTION PETITION NO.1 OF 2017

OMARI WANJIKU ESHA VS IEBC & 2 OTHERS

BETWEEN

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

AND

THE SECRETARY TO THE IEBC...........................................................................1^ST RESPONDENT

THE SECRETARIAT IEBC........................................................................................2^nd RESPONDENT

THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION.....3^RD RESPONDENT

OMARI WANJIKU ESHA................................................................................EX-PARTE APPLICANT

RULING

1. Pursuant to leave granted by this court on the 3^rd October, 2019 the Applicant filed the substantive Notice of Motion dated the 3^rd October, 2019 seeking for the following orders:

(i) An Order for Mandamus directed at the respondents compelling 1^st and 2^nd respondents to pay the ex-parte applicant the sum of Kshsh.325,125/- with interest at court rates from the 25^th June, 2018.

(ii) Costs be awarded to the ex-parte applicant.

2. The application was premised on the grounds on the face of the application and also supporting the application is the applicant’s Statement of Facts and his Verifying Affidavit; both are made on the 2/10/2019.

3. The respondents upon being served with the Notice of Motion filed a Replying Affidavit dated the 11/11/2019 made by the advocate on record acting on behalf of the respondents;

4. Directions were taken on the 4/12/2019 and the parties were directed to canvass the application by filing and exchanging written submissions and thereafter highlight the same; hereunder is a summary of the parties’ respective rival submissions;

APPLICANT’S CASE

5. The applicant stated that he had filed an election petition in the Chief Magistrate’s court that is Election Court No.1 of 2017 challenging the nomination of one Millicent Cherotich as a nominated member of the Nyeri County Assembly under the Jubilee Party ticket;

6.      The Petition was determined on the 31/01/2018 in ex-parte applicant’s favour and the parties were ordered to bear their own costs; the 2^nd Respondent being aggrieved with the decision preferred an appeal against the decision in Nyeri High Court Election Petition Appeal No.1 of 2018; and the IEBC filed submissions in support of this appeal; the High Court held that the ex-parte applicant was entitled to costs both on appeal and in the subordinate court; and directed that the costs be assessed by the taxing master;

7. The ex-parte applicant in its letter dated 11/07/2018 to the Executive Officer of the court requested for the assessment of costs; this letter was copied to all the parties; the costs were assessed at Kshs.325,675/- and a Certificate of Costs was issued dated 25/06/2018; since the court did not direct which party was to pay the costs it then follows that all the respondents were jointly liable for the costs; case law relied on Joshua Mutua Paul vs Hon.Attorney General & Danson Mwaniki [2013]eKLR;

8. Despite several demands the respondents have failed, refused and or neglected to pay the costs prompting this current application.

RESPONDANT’S CASE

9. In response the respondent stated that the respondents did not file the appeal which led to the award for costs and hence cannot be condemned to pay the said costs; the ex-parte applicant did not serve the respondents with either the application for the assessment of costs or the certificate of costs; the respondents only learned of the issue of costs through this instant application;

10. In the original petition the ex-parte applicant had sued the 3^rd respondent, one Millicent Cherotich and the Jubilee Party; in awarding costs to the ex-applicant this court did not specify who was to pay the costs; the ex-parte applicant should pursue costs from the party that instituted the appeal against him; the costs ought to have been capped in accordance with Section 30(1) (c) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017; or properly taxed by a taxing master and the respondents be given a chance to be heard and for the court to also clarify the basis for the decision to impose the costs on the 1^st respondent as opposed to the other two respondents; and who among the original respondents ought to pay the costs.

ISSUES FOR DETERMINATION

11. After reading the parties’ pleadings and written submissions the  court has framed only one issue for determination; which is;

(i) Whether the application meets the threshold for an order for mandamus;

ANALYSIS

12. An order for mandamus is a discretionary remedy that compels public officers to perform their public duties including statutory duties; this remedy does not lie against a public officer as a matter of course; it is an order granted only where there is no other appropriate or adequate remedy available to the applicant; in other words if there is a satisfactory alternative remedy available to an applicant a court will not grant ‘mandamus’; an adequate remedy is one of the bars or limitations to the availability of the order; this limitation does not exist in this instant case;

13. The applicant in its letter dated 11/07/2018 to the Executive Officer of the court requested for the assessment of costs; this letter was copied to all the parties; the costs were assessed at Kshs.325,675/- and a Certificate of Costs was issued dated 25/06/2018;

14. Under the provisions of Section 13(2) of the IEBC Act the Accounting Officer is under a statutory duty to pay any sums, including costs which are duly certified by a court to be due and payable in a decree;

15. The provisions of Section 10(7) (c) of the IEBC Act defines the Secretary to the Commission to be the Accounting Officer and therefore it is this officer who bears the statutory duty to satisfy decrees of the court; it therefore follows that for the purposes of instant application this is the officer against whom an order for mandamus will issue to compel him/her to exercise this statutory duty to satisfy the decree;

16. The argument that the respondents cannot be condemned to pay the costs because they did not participate in the appeal from which the costs emanated from does not hold water; this is due to the fact that the record reflects that the 2^nd respondent filed submissions to support the appeal in Nyeri High Court Election Petition Appeal No.1 of 2018;

17. The High Court held that the ex-parte applicant was entitled to costs both on appeal and in the subordinate court; and directed that the costs be assessed by the taxing master; the issue of lack of service of the Notice cannot be brought at this juncture and the record also reflects that the respondents have taken no action to challenge or reverse this decision on costs in the requisite manner;

18. Since the court did not direct which party was to pay the costs it is this court’s considered view that the respondents were jointly and severally liable; and the applicant is at liberty to pursue any of them to pay the full costs;

FINDINGS AND DETERMINATION

19. For the reasons stated above this court makes the following findings and determination;

(i) This court finds that the application meets the threshold for an order for mandamus;

(ii) The application is found to have merit;

(iii) This court hereby grants the applicant an order of mandamus compelling the Secretary of the IEBC who is the accounting officer to pay the sum of Kshs.325,125/- with interest at court rates from 25/6/2018;

Orders Accordingly.

Dated, Signed and Delivered Electronically at Nyeri this 10 day of December, 2020.

HON.LADY JUSTICE A.MSHILA

JUDGE