1.Before this court is the notice of motion dated April 20, 2021 seeking for the following orders:i.That an order of mandamus do issue against the respondents jointly and severally compelling the respondents to pat the judgment debt of Kshs 20,061,274.23 together with interest at the rate of 12% per annum from February 19, 2021 until payment in full which judgment debt arises from Chuka CMCC No 43 of 2019 Kingdom Developers Merchants Ltd v County Government of Tharaka Nithi & Anor.ii.That the respondents be condemned to bear the costs of these proceedings.
2.The application is premised on the grounds on the face of it and supported by the affidavit sworn on March 16, 2021 by Mumbi Gitonga, a director of the exparte applicant herein. The said Mumbi Gitonga deposes that on or about May 9, 2016, the exparte applicant was awarded tender No TNG/39/RDS/2015-2016: Spot Improvement of Mugwe ward roads by the County Government of Tharaka Nithi for the sum of Kshs 20,652,872/=. That the exparte applicant successfully carried out the civil engineering works required under the said tender and was issued with a completion certificate. That after the successful completion of the said works, the County Government of Tharaka Nithi only settled Kshs 4,576,099.20 of the tender sums, leaving an outstanding sum of Kshs 16,131,323/=, which sums the County Government has failed/refused and/or declined to settle. Consequently, the exparte applicant filed Chuka CMCC No 43 of 2019 Kingdom Developers and Merchants Limited v County Government of Tharaka Nithi & Anor against the County Government of Tharaka Nithi and the 4th respondent herein. That the matter was heard and judgment was entered on September 23, 2020 in favour of the exparte applicant for Kshs 16,176,722.80 together with costs and interests at court rates. That the respondents have since failed to settle the said decretal sum hence the filing of the present application.
3.The application is not opposed.
4.I have considered the pleadings filed by the applicant. The main issue for determination is whether the order of mandamus sought against the respondents is available to the ex-parte applicant.
7.It follows from the above authority that the remedy of mandamus will issue where there is a public duty to be performed by the respondents and where no other appropriate remedy is available to the applicant.
8.In this case, it is not in dispute that the ex-parte applicant filed a suit in Chuka CMCC No 43 of 2019 for recovery of sums due under the awarded tender No TNCG/39/RDS/2015-2016. The said suit proceeded and judgment was entered in favour of the ex-parte applicant for the sum of Kshs 20,061,274.23 which sum continues to attract interest at 12% p.a. from February 19, 2021 until payment in full. No appeal has been preferred against the said decision.
10.Section 21 (3) of the said Act goes further to state;
11.From the above provision, it is clear that the execution of proceedings against a government or public authority should be done against the accounting officer of the said government or authority, who is under a statutory duty to satisfy a judgment made by the court against that body.
12.The ex-parte applicant has annexed copies of the notification of award, the completion certificate, the plaint, memorandum of appearance and defence, and the judgment arising in Chuka CMCC No 43 of 2019. The ex-parte applicant has also annexed a demand letter which constitutes sufficient evidence that the ex-parte applicant followed the laid down procedure in informing the respondents of the judgment of the court. There is therefore no reason why the respondents should not be ordered to settle the decretal amount.
13.The upshot of the foregoing, therefore, is that the ex-parte applicant has a judgment in its favour with respect to the decretal amount and costs. The ex-parte applicant has also followed the laid down the procedure stated under section 21 of the Government Proceedings Act. As such, the respondents are duty bound to pay the debt already decreed by a competent court of law to be due and payable by them. Court orders are to be obeyed as no one is above the law. The respondents were given time to reach an agreement on how to pay the sum but there is no offer that has been forthcoming from them.
14.Accordingly, I find that the ex-parte applicant’s notice of motion dated April 20, 2021 is merited. I allow the application and order that:-1.An order of mandamus shall issue against the respondents jointly and severally directing them to pay the exparte applicant Kshs 20,061,274.23 together with interests at 12% per annum from February 19, 2021 until payment in full. Costs to the applicant.
DATED, SIGNED AND DELIVERED AT CHUKA THIS 23RD DAY OF MARCH 2023.L.W. GITARIJUDGE23/3/2023Ruling has been read out in open court.L.W. GITARIJUDGE23/3/2023