1.In his notice of motion dated August 7, 2020 and filed on August 18, 2020, the ex parte applicant sought for orders that an order of mandamus be directed to the respondents to compel them to pay him the sum of Kshs 473, 585/= being the decretal amount owed to him in CMCC No 527 of 2012 together with interest accruing thereon at the rate of fourteen (14%) per annum from February 7, 2018 until payment in full and the taxed costs of the suit that were assessed at Kshs 182,190/=.
2.He swore an affidavit in support of his said application on August 7, 2020. He averred that he instituted CMCC No 527 of 2012 at Kisumu Law Courts against the respondents claiming compensation for injuries he sustained as a result of the accident in which the respondents’ motor vehicle was involved.
3.He contended that the matter proceeded to full hearing and the trial court delivered a judgment on February 7, 2018 in his favour. He added that thereafter his advocates notified the respondents of the said judgment and also served them with a notice to institute judicial review proceedings but that the respondents had not settled the decretal sum together with the taxed costs and/or advanced a plausible reason to explain the failure to pay the aforesaid judgment sum.1.He was emphatic that he had been denied the fruits of his judgment hence the need for an order of mandamus to compel the respondents to settle the decretal sum as no appeal had been preferred to stop them from complying with the trial court’s decree.2.The respondents did not file any response to the ex parte applicant’s application and/or written submissions. The ex parte applicant’s written submissions were dated March 28, 2022 and filed on April 7, 2022.3.This judgment is therefore based on the said ex parte applicant’s written submissions.
8.He urged the court to exercise its discretionary power and grant the orders sought. He drew the court’s attention to Halsbury’s Laws of England 4th Edition Volume 1 (1) paragraph 12 page 270 which states that, “The remedies of quashing orders, prohibiting orders, mandatory reliefs are all discretionary. The court has a wide discretion whether or not to grant, courts will take into account the conduct of the party applying and consider whether it has not been as such as to disentitle him to relief.”
9.He pointed out that he had demonstrated that he followed up on his judgment and made the demand of the same from the respondents who never settled the decretal amount and the taxed costs.
10.He further contended that the institution of judicial review proceedings was in the nature of mandamus and that seeking such an order was not essentially relief against the government but to compel a government official to do what the government through parliament has directed him to do.
11.He further contended that the institution of judicial review proceedings in the nature of mandamus and the applicant in seeking such an order is not essentially relief against the government but to compel a government official to do what the government through parliament has directed him to do. He placed reliance on the cases of Republic v Kenya National Examination Council Ex parte Gathengi & others civil appeal No 234 of 1996 (eKLR citation not given) and Shah v Attorney General (1970) EA 543 where the common thread was that mandamus is a prerogative order used to compel public officers to perform duties imposed upon them.
13.He asserted that since execution could not issue upon the respondents, the only avenue for him to obtain the amount owed to him was for the court to issue orders of mandamus to compel the respondents to settle the decretal amount together with the taxed costs.
18.In the present case, the court noted that the ex parte applicant served the respondents with certified copies of typed proceedings, certified copy of the judgment dated February 7, 2018, decree and certificate of costs dated February 7, 2018 and a notice to institute judicial review proceedings dated April 29, 2019.
19.Indeed, copies of the said judgment, decree and certificate of costs against the government were duly acknowledged by the provincial litigation counsel at the Attorney General’s office in Kisumu as was evidenced by its official stamp on all documents.
20.The respondents did not give any cogent reason why the decree had not been satisfied more than four (4) years since it was issued. Notably, an entity that fails to carry out its constitutional and statutory mandate does so at its detriment and cannot defeat a lawful claim that has been made against the government.
21.As the ex parte applicant was barred from executing against the government to recover its monies without first complying with the law, it had no option but to apply for an order for mandamus. Indeed, unless the order herein was granted, he would be left with an unexecuted decree.