Chomba t/a Range Merchant v Principal Secretary, Ministry of Water, Sanitation and Irrigation & another (Judicial Review Miscellaneous Application E010 of 2022)  KEHC 746 (KLR) (Judicial Review) (9 February 2023) (Judgment)
Neutral citation:  KEHC 746 (KLR)
Republic of Kenya
Judicial Review Miscellaneous Application E010 of 2022
AK Ndung'u, J
February 9, 2023
John Chomba t/a Range Merchant
Principal Secretary, Ministry of Water, Sanitation and Irrigation
1.The application before this Court is the amended Notice of Motion application dated 26th April,2022 seeking the following orders;i.An order for Mandamus to compel the Principal Secretary Ministry of Water Sanitation and Irrigation to pay the decretal sum together with the accrued interest as ordered by the Honourable Magistrate Court in Civil Case No.10632 of 2018 in its final decree dated 17th May 2019 further leading to A certificate of Order dated 15th of September,2019 against the Government for the decretal sum together with unpaid interest Plus costs Certified by the Taxing Master for a total of Kshs.30,763,068.37/=.ii.Costs of this Application be awarded to the Applicant in any event.”
2.The application is supported by a Statutory Statement dated 26th April,2022 and a Verifying and Supporting Affidavit both of which are sworn by John Chomba on even date.
3.The Applicant’s case is that pursuant to the Court’s judgement of 7th May,2019 the 1st Respondent was directed to pay the decretal sum of Kshs.9,629,600/= together with interest from 1st February,2002 to September 2019 at the rate of 12% per annum together with costs. According to the Ex parte applicant the amount due as tabulated in the Certificate of Order against Government is the sum of Kshs.30,763,068.37/=. The Applicant contends that all efforts to recover this sum have failed.
4.In rebuttal the Respondents filed Grounds of Opposition dated 7th October,2022 in which they contend that the instant application is frivolous, vexatious and an abuse of the court process, that it does not meet the threshold of issuing the order of mandamus sought, that there are no orders sought against the 2nd Respondent and therefore it ought to be struck off the proceedings. It is also argued that Judicial review deals with the decision-making process and not the merits of the decision.
5.I have considered the arguments advanced by the parties herein and the issue for determination is whether the Respondents have a legal duty to satisfy the decree subject of these proceedings and whether the Applicants have satisfied the conditions precedent to warrant the orders sought.
6.I note from the positions taken by the parties that it is not in contention that there is a valid court order pending fulfilment by the Respondents herein. Further, that the Respondents have not denied having been served by the Applicant in accordance with the provisions of Section 21 of the Government Proceedings Act which provides thus;
7.Section 21 (3) provides as follows;
8.In their submissions the Respondents contend that a party seeking Judicial Review orders must first prove that the decision or act complained of is tainted with illegality, irrationality and/ or procedural impropriety as was held in the case of Pastoli vs. Kabale District Local Government Council and Others  2 EA 300.
9.It is also their argument that that there has been an institutional change and thus a change of guard in the ministry and therefore they seek more time to have the Principal Secretary Ministry of Water, Sanitation and Irrigation make good his claim.
10.The Applicant on the other hand contends that the Respondents were accorded proper Notice or demand for performance. Further, that they were equally accorded reasonable time to comply prior to filing of the application for Mandamus yet they are yet to comply with the court order and the Applicant is yet to receive the decretal sum as ordered by court. It is argued that the Respondents have not disputed the existence of the said decree and order and equally they have not disputed having been served with the said certificate of order and the demand letters for compliance.
11.Under what circumstances is an order for mandamus merited? The Court of Appeal in the case of Republic v Kenya National Examinations Council Ex Parte Gathenji & 8 Others Civil Appeal No 234 of 1996, cited with approval, Halsbury’s Law of England, 4th Edition. Vol. 7 p. 111 para 89 thus:
12.The Court in the case of Republic v The Attorney General & Another ex parte James Alfred Koroso (2013) eKLR held as follows;
13.In the instant case before this Court I note that the decree in question is the one issued on 17th May, 2019 and I also note that the firm of Murangasia & Associates Advocates served the 2nd Respondent on two occasions that is on 9th September,2019 and 28th October,2019 with the Decree and Certificate of Order Against Government. There is therefore no valid reason proffered as to why the decree herein has not been satisfied.
14.The only way for the Applicant to enjoy the fruits of the court’s judgement is through the issuance of an order of mandamus compelling the Respondents to comply with the court’s orders.
15.For reasons above stated, I allow the Applicant’s application dated 26th April, 2022 with costs. It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF FEBRUARY 2023A. K. NDUNG'UJUDGE