1.The applicant brought judicial review proceedings herein seeking an order of mandamus to compel the respondents to pay the decretal amount owed as a result of a judgment delivered on October 22, 2020 between the applicant and the respondents in Civil Case No 12 of 2020 at the Mandera Law Courts.
2.As a result, by a notice of motion dated November 30, 2022, the applicant sought for the following orders that:
3.The application was premised on the grounds on its face and supported by the annexed affidavit of Abdullahi Sheikh Ahmed. The core grounds were that the the applicant filed a plaint against the respondents dated July 20, 2020 at Mandera Law Courts and the same was determined pursuant to the judgment of Hon PW Wasike (SRM) delivered on October 22, 2020. The respondents were served with a decree and certificate of costs vide a letter dated March 2, 2021; a certificate order was also served on the respondents on September 1, 2021. That the applicant has made numerous attempts to have the respondents settle the said sum in vain and as a result therefore, it became apparent that unless compelled by an order of this court, the respondents would remain uncommitted to settling the debt.
4.The firm of Duwane & Wethow Advocates for the respondents opposed the application via a replying affidavit by Billow Issack Hassan and sworn on January 18, 2023 deponing that he is the county Secretary of the 1st respondent’s County Government. That the application is premature and was brought to defeat justice as the applicant was on a mission to enrich himself unjustly at the expense of the tax payers. That the respondent had filed an application for stay on September 13, 2021 which was yet to be determined. It was stated that the trial court reached a determination without any defence and/or response from the respondents as the failure to put in defence was an honest mistake occasioned by the former county secretary of the 1st respondent.
5.It was averred that the applicant did not serve the respondents with certificate of order and therefore, the applicant could not execute the decree under such circumstances. That in any event, any liability and/or expenditure incurred against the respondents could only be defrayed from moneys provided for by the budget of the 1st respondent which is a public fund and such a payment would be detrimental to the interest of prudent use of public funds. The respondents thus urged this court to dismiss the application as the same was an abuse of the court process.
6.When the matter came up for hearing, directions were taken that the same be canvassed by way of written submissions. The applicant submitted that the respondents have wilfully disobeyed the court order and did not make any attempt to pay the applicant his dues as ordered by the court. That the respondents did not deny that the amount ordered to be paid had remained unsatisfied since they were duly served with a decree and certificate of order.
8.The applicant contended that unless the mandamus order sought is issued, the applicant shall be unable to enjoy the fruits of his judgment. The applicant relied on the case of Republic v Permanent Secretary Ministry of State for Provincial Administration and Internal Security (2012) where the court was persuaded to issue a mandamus order to compel the accounting officer concerned to pay the sums specified in the order to the person entitled. This court was therefore urged to allow the prayers sought as the applicant had satisfied the grounds for issuance of an order for mandamus.
10.Further, the respondents contended that any liability and expenditure incurred against the respondents could only be defrayed from moneys provided by the budget of the 1st respondent which is a public fund and such payment would be detrimental to the interest of prudent use of public funds. To stress the same, the respondents relied on the case of Institute for social accountability & Another v National Assembly & 3 Others & 5 Others (Petition 1 of 2018)  39 (KLR) where the court underscored the importance of ensuring that public funds are not wasted or abused. In the end, this court was urged to refer this matter back to Mandera Magistrate’s Court for a retrial of the claim herein so that all parties are accorded a fair opportunity to be heard and the case be determined on its own merits. The respondents further prayed that the application herein be dismissed with costs as the same was an abuse of the court’s process.
11.I have considered the application and response thereof. The issue for determination is whether an Order of Mandamus should issue as prayed in the applicant’s application.
12.It is settled law that before an order of mandamus is issued, an Applicant must abide by the procedure in Section 21 of Government Proceedings Act which provides:
13.Section 21 (3) of the said Act on the other hand provides:
14.The circumstances under which judicial review order of mandamus are issued were discussed in the case of Republic v Kenya National Examinations Council Ex Parte Gathenji & 8 Others Civil Appeal No 234 of 1996, where the Court of Appeal cited with approval, Halsbury’s Law of England, 4th Edition Vol 7 p 111 para 89 thus:
15.In this case, the applicant moved this Court to compel the satisfaction of a judgment already decreed in his favour by a competent Court of law. The applicant demonstrated by way of evidence compliance with the provisions of Section 21 of the Government Proceedings Act. The Respondents did not give any satisfactory reason as to why the decree had not been fulfilled almost two years later and instead, argued that they were not served with the Certificate of Order against Government by the applicant as is required by law.
16.A cursory look at the application and affidavit filed, and specifically, the letter by the applicant to the respondent dated March 2, 2021 enclosed therein was a copy of the relevant decree, Certificate of order against the Government and Certificate of taxation of the judgment entered in favour of the applicant. That letter was duly stamped as received by the Ministry of Roads, Transport and Public Works of the 1st respondent. Suffice it to note that the letter was a demand letter which clearly stated that in default of payment, execution proceedings would be instituted by way of attachment of movable property. Of importance to note, the respondents were less candid in denying that the certificate of order was not served yet the evidence in the record showed the contrary. It is in reference to the material before this court that the court notes that indeed, the respondents were served.
17.It is not lost to the court that the respondents filed an application dated September 9, 2021 for orders inter alia to set aside the interlocutory judgment entered on October 22, 2020 and further to stay execution of the decree and any further proceedings pending the hearing and final determination of the said application. Whereas the respondents have the inalienable right to pursue a review of the said judgment by the trial court [ See article 50 (2) (q) of the constitution]; the fact of the matter is that there was no proof of any orders of stay issued or any attempt by the respondents to prosecute the matter since its filing.
18.The decree herein is therefore due and payable and there is indeed default. The applicant cannot within the law execute the decree against the respondents other than through the procedure spelt out under Section 21 of the Government Proceedings Act.
20.In the premises, I am satisfied that the applicant has made a case for the grant of an order of mandamus and I hereby grant the same in terms of prayer (1) of the Notice of Motion dated November 30, 2022. The applicant will also have costs of this application.