1.On 3/3/2021, the ex-parte Applicant was granted leave to apply for an order of mandamus to compel the respondents to release a sum of Kshs. 1,922,086.57/=. The decretal amount was pursuant to judgment delivered in Kisii High Court Constitutional Petition No. 108 of 2010 and High Court Miscellaneous Application No. 65 of 2011. Leave was granted and the ex parte applicants filed a substantive motion on March 17, 2022seeking for the following orders;i.That the honourable court be pleased to grant/ issue orders of judicial review in the nature of mandamus compelling the respondents’ herein that is the cabinet secretary & chief administrative secretary, ministry of internal security, the commissioner of police and the honourable attorney general to satisfy and / or pay the decretal sum of Kshs. 1,922,086.57/=( One Million, Nine Hundred And Twenty Two Thousand, Eighty Six Shillings And Fifty Seven Cents) only, vide court judgment/ order dated the 31st day of march 2011 and the certificate of costs dated the 9th day of October 2014, to the counsel of the ex parte applicants, as contained in the court judgement , order and certificates of taxation and certificates of taxation and certificates under the Government Proceedings Act, respectively obtained in favour of the applicants vide Kisii High Court Constitutional Petition No 108 of 2010 and High Court Miscellaneous Application Number 65 of 2011.ii.That the ex parte applicant be at liberty to apply to the honourable court for all necessary and / or consequential orders that the honourable court may deem fit and just to grant.iii.That cost of this application be borne by the respondents and the interested parties.
2.The application is grounded on the statement of the judicial review dated October 25, 2021, the verifying affidavit and supporting affidavit sworn by Samwel Mosonik, the 5th ex parte applicant herein on October 25, 2021. The ex parte applicant averred that the honourable court awarded the ex parte applicant damages in accordance with the mandatory provisions of article 23(3) (a) (e) and (f) of the Constitution. In the sum of Kshs. 1,922,086.57 vide the judgment/ order dated March 31, 2011 and the certificate of cost dated 9/10/2014. But the respondents have failed to pay the sum, yet the ex parte applicants could not execute the decree. However, the court could compel by an order of mandamus for payment of the said sum.
3.The respondents were served with the said application however, they did not file any replies.
4.The application was canvassed by way of written submissions. None of the parties filed written submissions as directed by this court on 5/5/2022.
Analysis and Determination
5.I have considered the application herein. The main issues for determination by this court are;a.Whether the applicant has satisfied the conditions for issuance of a mandamus order.b.Whether the respondent is entitled to pay the applicant the claimed sum.
7.In this case the applicants are seeking for a fair treatment. They only seek to have the respondents pay out the said sums so that they can enjoy the fruits of his judgment, failure to which it amounts to an injustice. The only way the applicants could obtain their money is by filing such an application since execution cannot issue against the government as provided for by section 21(4) of the Government Proceedings Act which states: -
8.A certificate of costs dated October 9, 2014 indicated the decretal sum of Kshs. 1,922,086.57/=. The applicants complied with section 21 of the said Act which states as follows:(1)Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty- one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.(2)A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney- General.(3)If the order provides for the payment-of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:”
10.Accordingly, the respondent should be compelled by an order of Mandamus to pay out the decretal sums herein to the ex parte applicants who have complied with the procedure as stated above.
12.In the premises, I find that the ex parte applicant’s Notice of Motion dated March 16, 2022 is merited and I issue the following specific orders:i.An order of Mandamus is hereby issued to compel the respondent to pay the ex parte applicants the sum of Kshs 1,922,086.57/= being the decretal sum awarded to the ex parte applicants in Kisii High Court Constitutional Petition No. 108 of 2010 and High Court Miscellaneous Application Number 65 of 2011.ii.The ex parte applicants shall have the costs of the Notice of Motion dated March 16, 2022
13.It is so ordered.