Republic v Cabinet Secretary, Ministry of Internal Security & 3 others; Marsin & 7 others (Exparte) (Judicial Review Application 2 of 2021)  KEHC 16043 (KLR) (3 November 2022) (Judgment)
Neutral citation:  KEHC 16043 (KLR)
Republic of Kenya
Judicial Review Application 2 of 2021
F Gikonyo, J
November 3, 2022
The Cabinet Secretary, Ministry of Internal Security
The Chief Administrative Secretary(CAS) Ministry of Internal Security
The Commissioner of Police
The Attorney General
Chelimo A. Marsin
1.On 3/3/2021,The court granted the ex parte applicants leave to apply for an order of mandamus to compel the respondents to release a sum of Ksh 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.
2.The ex parte applicants filed a substantive motion on 17.03.2022 seeking 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.
3.The application is grounded on the statement dated 25th October 2021, the verifying affidavit and supporting affidavit sworn by Samwel Mosonik, the 5th ex parte applicant herein on 25th October 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 31/o3/2011 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.
4.The respondents were served with the said application however; they did not file any replies.
5.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
6.I have considered the application herein. The main issues for determination by this court are;
7.The Court of appeal in Commissioner of Land v. Kunste Hotel Ltd [1995-1998] 1EA 1 (CAK) laid the principle on Judicial review as follows: -
8.In this case the applicants are seeking for a fair treatment. Failure by the respondents to pay the decretal sum impedes their right to enjoy the fruits of his judgment; which they argued, amounts to an injustice. The only way the applicants could obtain payment thereof is by way of order of mandamus as execution cannot issue against the government under Section 21(4) of the Government Proceedings Act which states: -
9.A certificate of costs dated 9th October 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:
10.The respondents bear a public duty to satisfy the decree, and in case of failure on their part to discharge the duty, the court has power to compel them to do so. In R v. Kenya National Examination Council ex-parte Gathengi & 8 Ors  eKLR the three-judge bench of the Court of Appeal stated from the Halsbury’s Law of England, 4th Edn Vol. 7 pg 111 para 89 as follows:
11.See also R v. Permanent Secretary Ministry of State for Provincial Ministry of State for Provincial Administration and Internal Security & Anor ex parte Fredrick Manoah Egungza  eKLR as follows:
12.Accordingly, the accounting officer as well as the Attorney General should be compelled to pay the decretal sum to the applicants.
13.In the premises, I find that the ex parte Applicant’s Notice of Motion dated 16th March 2022 and I issue the following orders:
14.It is so ordered.
DATED, SIGNED AND DELIVERED AT KILGORIS THROUGH TEAMS APPLICATION, THIS 3RD DAY OF NOVEMBER, 2022.F. GIKONYO M.JUDGEIn the presence of:CA – Mr. KasasoAll Parties - Absent